Ehlanzeni Further Education and Training College v Commissioner Isaiah Shongwe N.O and Others (JR 3154/12) [2022] ZALCJHB 106 (16 May 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR 3154/12

In the matter between:

EHLANZENI FURTHER EDUCATION AND

TRAINING COLLEGE

Applicant

and

COMMISSIONER ISAIAH SHONGWE, N.O. First Respondent

GENERAL PUBLIC SERVICE SECTORAL

BARGAINING COUNCIL

Second Respondent

THABO GODFREY KABINI

Third Respondent

Heard:

22 July 2021

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email, publication on the Labour Court’s website. The date and time for hand-down is deemed to be on… 16 May 2022 at 10:00

JUDGMENT

TLHOTLHALEMAJE, J

Introduction:

[1] Before the Court are various inter-related applications. The first is an application by the applicant to have the file in the review

application retrieved from the archives after it was deemed withdrawn by virtue of the provisions of clause 11.2.3 of the Practice Manual of this Court. The second is an application for condonation for the late filing of the transcribed record of arbitration proceedings. To the extent that the first two applications succeeds, the third respondent seeks an order in terms of Rule 11 of the Rules of the Court to have the review application dismissed, and to have the arbitration award issued in his favour by the second respondent to be made an order of court in terms of section 158(1)(c) of the Labour Relations Act[1] (LRA). The parties had in terms of a consent order filed in terms of Rule 17 of the rules of the Court, agreed to consolidate these applications.

The application to retrieve the review application from the archives:

[2] For the purposes of this application, it would make sense to also consider the application for condonation for the late filing of the transcribed record of proceedings, as central to the two applications is whether the applicant has shown good cause. Clause 11.2.2 of the Practice Manual provides that for the purposes of Rule 7A (6) of the Rules of this Court, 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. Under clause 11.2.3, if the applicant fails to file a record within the prescribed period, the review application will be deemed to have been withdrawn, unless the applicant has obtained consent of the respondent for an extension of time. Where consent is not sought or granted, it will be up to the applicant to seek an indulgence from the Judge President in chambers. Under clause 11.2.4[2], where the record of the proceedings is lost or incomplete or of poor quality, again the applicant is to approach the Judge President for directives on the matter.

[3] Clause 11.2.7 upon which the applicant relied in seeking a retrieval of the matter 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’.

[4] In this case, the background to the applications before the Court is as follows;

4.1 The third respondent, Mr Kabini, was employed by the applicant as Assistant Director: Corporate Service in June 2007, until he was dismissed on 7 April 2011 on account of 11 allegations of misconduct.

4.2 Kabini subsequently referred an alleged unfair dismissal dispute to the second respondent (GPSSBC). Following arbitration proceedings that took over no less than 15 days, the first respondent (Arbitrator), issued an arbitration award on 12 November 2012 in which it was found that the dismissal of Kabini was unfair. The applicant was ordered to reinstate Kabini with retrospective effect.

4.3 Aggrieved, the applicant had on 18 December 2012, served and filed an application to review and set aside the award. On 18 January 2013, Kabini filed a Notice to Abide by the decision of the Court.

4.4 Eleven months later, Kabini had on 6 December 2013, filed and served an application in terms of section 158(1)(c) of the LRA to have the arbitration award made an order of Court.

4.5 The transcribed record of the arbitration proceedings which was on the applicant’s version incomplete, was filed and served on 23 December 2013, and an application for condonation in that regard was filed and served. This application appears not to have been opposed.

4.6 On 24 October 2016, the applicant filed what it referred to as notes on the reconstruction of the record. On 19 November 2016, Kabini through his current attorneys of record filed and served an application in terms of Rule 11 of the Rules of the Court, to have the review application dismissed.

4.7 The applicant’s current attorneys of record were appointed in November 2019, and in March 2020, they were advised that the review application has since been archived. On 18 June 2018, Kabini sought to have the Rule 11 application enrolled on the opposed roll.

4.8 On 23 July 2020, the applicant’s attorneys of record then filed and served an application in terms of clause 11.2.7 of the Practice Manual to have the file removed from the archive. This application is opposed.

[5] In these proceedings, counsel for the applicant sought to argue that there was no basis for a conclusion to be reached that the file was archived, or that the applicant could not have known that the review

application had been deemed withdrawn. The argument in this regard was that it was not known when the archiving of the matter took

place. It was further submitted that an archiving could not have taken place at least from 19 November 2019, in circumstances where Kabini had filed his Rule 11 application, which was fully opposed on 2 June 2020, and further where that application was waiting for enrolment.

[6] The above contentions clearly lack merit in the light of the deeming provisions in clauses 11.2.3, and the automatic archiving of the matter under the provisions of clause 16.1 read together with those of clause 11.2.7. Clause 11.2.7 of the Practice Manual properly construed, only deals with the substantive aspects of an application for retrieval. The procedural aspects are provided for in clause 16.2 read with those of Rule 7 of the Rules of this Court. This point was long made out in Samuels[3], where the LAC held that;

“(4) In order for a file to be brought back to life, an interested party has to act in terms of clause 16.2 which requires an application, on affidavit, for the retrieval of the file on notice to all other parties to the dispute to be launched. The provisions of rule 7 will apply to such an application. This is such an application brought by the appellant in the court a quo. Clause 16.3 provides that:

‘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.’

[7] Equally without merit is the contention that a Rule 11 applicant as filed in this case also negated any archiving of the matter. This is so in that where a matter is deemed to be withdrawn or archived in accordance with the provisions of the Practice Manual, it ceases to exist. As it was observed in Zono v Minister of Justice and Correctional Services In re: Minister of Justice and Correctional Services v Zono and Others[4], and with particular reference to Samuels and Macsteel[5], when a review application lapses, it is deemed withdrawn or dismissed in terms of clauses 11.2.3, 11.2.7 or 16.3 respectively, and remains so unless and until the applicant succeeds in an application to reinstate or retrieve the application, thus restoring its status as a pending application.

[8] Thus, in the event that an application for a retrieval succeeds, obviously the review application will be enrolled for the determination of the merits. Where however there is no such application, or such an application is unsuccessful, the review application will remain archived and in my view, the most appropriate remedy available such as in this case where the respondent is in possession of a favourable award, would be to seek an order in terms of section 158(1)(c) of the LRA. This is what Kabini has done in any event since 6 December 2013.

[9] On the opposite end, if the review deemed withdrawn or archived was brought by an unsuccessful party at the arbitration proceedings, this in my view ought to be the end of that review application where the application for retrieval was unsuccessful, and in my view, any Rule 11 application in the circumstances would become superfluous[6]. I am however of the view that a Rule 11 application will not for all intents and purposes be deemed to be nugatory or superfluous. This is so in that depending on circumstances of each case, the provisions of Rule 11, which are effectively meant to dismiss applications for lack of timeous prosecution, will always remain a valuable tool. Furthermore, it has also been confirmed that the purpose of the provisions of the Practice Manual in any event is to replace the rules of this Court, but merely to enforce and give effect to those rules as indicated below.

[10] Having disposed of the above issues and to the extent that the applicant in any event seeks a retrieval, the approach to be adopted in that regard has also been set out in Samuels as follows:

‘(15) The Practice Manual is not intended to change or amend the existing Rules of the Labour Court but to enforce and give effect to the rules, the Labour Relations Act as well as various decisions of the courts on the matters addressed practice manual and the rules. Its provisions therefore are binding. The Labour Courts discretion in interpreting and applying the provisions of the Practice Manual remains intact, depending on the facts and circumstances of a particular matter before the court.'

And,

‘(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, time frames 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.’

[11] In this case, after the filing and service of the review application, the applicant collected the record from the Registrar on 21 February 2013. This record was only delivered on 23 December 2013. Kabini in opposing the application has pointed out that he did not oppose the review application when it was filed on 19 December 2012, and that since he chose to abide by the Court’s decision, he had expected that the matter would be remitted back to the GPSSBC.

[12] Kabini pointed out that despite the review application not being opposed, there have been time lapses since then, which included; 11 months from the lodging of the review to the filing of the Rule 7A(8)(b) Notice; one year and 11 months from the filing of the incomplete record to making attempts to reconstruct it; nine months from attending reconstruction meeting to filing notes in that regard; and three years of inactivity since the filing of the notes on the reconstruction of the record, until the lodging of this application. He further lamented the fact that it was four years since an order was granted that the application for condonation in the review be set down and this was not done.

[13] He further averred that it was his application in terms of section 158(1)(c) of the LRA that prompted the applicant to take further steps in the review. In response to that application, the applicant had on 23 December 2013, filed an answering affidavit together with the transcribed record and the Rule 7A(8)(b) Notice. To the extent that any steps were taken by the applicant in that regard since the review application was launched, Kabini held the view that the applicant had throughout, adopted a casual approach to the review application, and therefore the application for revival was not bona fide.

[14] The applicant’s founding affidavit was deposed to by Ms Phumzile Mnguni, its attorney of record, who had filed a notice of substitution as attorney of record on 29 November 2019. In an attempt to demonstrate good cause, Mnguni’s explanation for the delay essentially relies on the averments made in the answering affidavit filed in respect of the Rule 11 application. Incidentally, that answering affidavit was also filed six weeks out of time, and an application for condonation in that regard was sought.

[15] Mnguni essentially attributed blame for any delays to the GPSSBC, which had initially submitted an incomplete record of the proceedings as the evidence of one witness was missing. The Arbitrator was also blamed for failing to properly make an electronic recording of the whole of the arbitration proceedings, or who had in the alternative, failed to file the complete record with the GPSSBC and the Registrar of the Court. The Applicant also blamed the delay on the Arbitrator,

who also failed to cooperate and attend scheduled meetings for the purposes of reconstructing the record.

[16] A further factor relied upon by the applicant was that Kabini himself had no desire to finalise the review application since there was a criminal case that was pending against him, and that it was only after that case was withdrawn on 25 June 2019, that he had showed any interest in the matter.

[17] Kabini has pointed out in arguments that Mnguni’s founding affidavit did not explain the 10 months in having the record transcribed, nor is there an explanation why it took a further two years to have the record reconstructed, and even after an incomplete record was filed on 23 December 2013, no further steps were taken in finalising the review until 24 October 2016, when the applicant filed notes on reconstruction of the record. The purported reconstruction was nonetheless made without any input from either the Commissioner or Kabini. Even then, no steps were taken to have the matter enrolled by informing the Registrar of the Court.

[18] In addressing the explanation proffered by Mnguni, as a starting point, it is not clear what the relevance of Kabini being involved in a criminal matter was, whilst the review application was pending. That application had not been opposed, and thus the criminal case had nothing to do with it. Kabini had specifically pointed out the delay of 10 months, or at worst, the 11 months between the lodging of the review application on 19 December 2012 and the filing of

the incomplete record which was not explained. Significant with Mnguni’s explanation in this regard is that it merely commences

from her appointment in November 2019. Scant details are provided by Mnguni in regards to contacts made with the applicant’s

previous attorneys of record in order to collect the files related to the matter and consultations in that regard during January, February and March 2020. Further averments were made in regards to securing counsel to be briefed in the matter and this was done in February 2020.

[19] In Samuels[7] it was reiterated that showing good cause entailed demonstrating that other than the fact that the application was bona fide, it was crucial that the applicant provide a reasonable explanation which covers the entire period of the default. In this

case, this was clearly not done.

[20] As I have already indicated, Mnguni’s explanation in regards to the delay merely commenced with events after she was appointed as attorney of record in November 2019. No attempt whatsoever was made to explain the ten months delay between after the filing and serving of the review application on 19 December 2012, the collection of the record from the Registrar on 21 February 2013, and the filing and serving of the record on 23 December 2013,

albeit incomplete. Even if Mnguni only came on board in November 2019, at the very least, and to the extent that on her own version she had consultations with the erstwhile attorneys after she took over the matter, it would have been expected of those attorneys to have made an attempt to explain the reason the transcribed record of proceedings was not filed within 60 days as required in terms of Rule 7A(6) of the Rules. If ever the delays may have been attributable to any other reason upon the record having been collected from the Registrar, it would have been expected that reasons in that regard be proffered and an explanation as to why the provisions of the practice manual could not be utilised to address any problems with the record at the time.

[21] It nonetheless gets worse for the applicant to the extent that Mnguni was appointed in November 2019. At the time, it had been about 7 years since the review application was launched and it had not gone anywhere near being finalised, let alone being ripe for a hearing. On her version, it was apparent from her consultations with the applicant’s erstwhile attorneys of record that an application for condonation for the late filing of the record was filed on 20 December 2013. This was after the incomplete and belated record was filed at about the same time. Furthermore, it further ought to have occurred to Mnguni, or at least to the applicant’s erstwhile attorneys of record, that the review application had since been deemed withdrawn and archived, and that an application in that regard was necessary. Notwithstanding, the application to retrieve and revive was only brought on 23 July 2020, some eight months since Mnguni was appointed. Significantly, no replying affidavit was filed upon the filing and service of the answering affidavit by Kabini, despite having pointed out the glaring deficiencies in Mnguni’s explanation.

[22] Mnguni had further averred that only upon counsel having been briefed in February 2020, it was only at that stage that the transcribed record was discovered to be incomplete. Attempts were then made to schedule meetings with the GPSSBC and the Commissioner with the aim of establishing the recordings of the missing portion. Again, at that point, and despite having realised the problems with the record, nothing was done in accordance with the provisions of clause 11.2.3 and 11.2.4 to attend to those problems. If the Commissioner or the GPSSBC were not cooperating in either furnishing the missing portion

of the record or in its reconstruction, the applicant could not have simply concluded that there was ‘sabotage’ on their part as alleged, without resorting to the provisions of the Practice Manual to ensure that the record was complete and properly before the Court. In any event, the filing of notes on the reconstruction by the applicant on its own, cannot be sufficient for the purposes of a proper record before Court. To the extent that any such records were filed on 24 October 2016, the full explanation since the applicant was advised of the record by the Registrar on 21 February 2013, until this latter date was equally required. This represents a delay of a period of about three years, which as already indicated, has not been explained.

[23] Equally without merit was the applicant’s contentions that before the filing of the notes on reconstruction of the record on 24 October2 016, the review application had been set down on 1 June 2016 and was struck off the roll on account of non-appearance by both parties. It will be recalled that Kabini had not opposed the review application and his non-attendance at the hearing on 1 June 2016 had no bearing on the need for the applicant to re-enrol the matter, let alone explain his absence on the hearing date. The applicant being dominus litis, it was not for the Registrar to simply re-enrol the matter once it had been struck off without any request by the applicant, let alone its explanation for non-attendance on 1 June 2016. I find it extraordinary therefore with the submissions made on by counsel

behalf of the applicant, that it was not its duty to re-enrol the matter. The applicant indeed chose to do nothing even after it became aware that the matter had been struck off the roll.

[24] In Zono[8], Van Niekerk J had endorsed the approach set out in Overberg[9], that once the legal status of the review application in a pending application ceases by operation of one of the deeming provision in the Practice Manual, there can be no enforceable obligation on either party to file for the court process and the main application. In these circumstances, an applicant party that has been dilatory and is seeking an indulgence to revive a review application must necessarily satisfy the Court that 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 reasonably do, so that the matter would be ready for hearing if reinstated. Thus, steps taken by the applicant

during the time that the application is inactive have a material bearing on the success of attempts to revive it, and it would thus be required of the applicant to demonstrate that it acted promptly in launching the reinstatement application and that it took further professional steps in a bona fide attempt to ensure the expeditious finalisation of the review if reinstatement is permitted.

[25] I fully endorse the approach. In this case, Kabini is correct in pointing out that the only reason that the applicant woke from its slumber was initially when he launched his section 158(1) (c) of the LRA application on 6 December 2013. That had resulted in the incomplete record being filed on 23 December 2013. The applicant again went into its slumber for almost three years other than filing the notes on reconstruction on 24 October 2016. Even then, and after the application for a review had been struck off the roll in June 2016, no further attempts were made to either re-enrol it let alone the application for condonation for the late filing of the record. Again, for a period of almost three years, the applicant did nothing, and it was only when Kabini had on 19 November 2019, filed his Rule 11 application that the applicant appointed Mnguni to attend to the matter, leading to the application for retrieval. This was now some 7 years since the review application was launched.

[26] In Zono[10], it was reiterated that an application for reinstatement of a review application deemed to have been withdrawn is, in essence, an application for condonation, and that it was incumbent upon the applicant to show good cause why, in this case, the record of the proceedings under review was not filed within the prescribed time limit. It was further reiterated that condonation was not there merely for the asking, nor are applications for condonation a mere formality.

[27] The highlight of applicant’s principal explanation was that the review application could not have been archived in view of the Rule 11 application that was opposed and ready to be enrolled. It has already been indicated that this application had no significant bearing to the extent that the review application remained deemed withdrawn. Any attempt at blaming the GPSSBC or the Commissioner for the incomplete state of the record has also found not to avail the applicant in view of the steps it ought to have taken to ensure that the transcribed record was fully attended to.

[28] In the end, the applicant has not proffered any explanation for the inordinate delays between February 2013 and 24 October 2016 in filing the complete transcribed record. Even if it were to be accepted that a record was filed in December 2013, the delay

between that period and February 2013 remained unexplained. Any explanation in that regard hardly comes close to being reasonable or acceptable. In effect, to the extent that there is no explanation in that regard, it follows that no purpose will be served by even having regard to the applicant’s prospects of success in line with the well-known approach in NUM v Council for Mineral Technology[11]

[29] In the end, the applicant has not demonstrated that the retrieval application was launched in good faith, nor has it demonstrated good cause why the review should be retrieved from the archives. On the opposite end, the prejudice to Kabini has been immense since December 2012 as a result of the applicant’s clear dilatoriness and lack of show of any urgency in finalising the review application over a period of eight years. The interests of justice in such circumstances, which is one of the primary considerations when assessing whether good cause has been shown, cannot therefore dictate that the retrieval application be successful. It further follows that Kabini’s application in terms of section 158(1)(c) of the LRA

ought to succeed.

[30] Kabini who has been unemployed since his dismissal in April 2011 had despite not opposing the review application, taken steps to have the application expedited and finalised. The applicant on the other hand failed to show any interest or urgency in that regard unless compelled by steps taken by Kabini. In the process, Kabini has suffered not only prejudice as a result of the inordinate delays in prosecuting the review, but also in having to oppose the clearly doomed application for a retrieval. In these circumstances, the requirements of law and fairness dictate that he be entitled to an award of costs in respect of that application.

[31] Accordingly, the following order is made;

Order:

1. The Applicant’s application to have its review application removed from the archives is dismissed.

2. The arbitration award issued by the First Respondent under case GPSSBC 1815/2011 dated 12 November 2012 is made an order of Court in accordance with the provisions of section 158(1)(c) of the LRA.

3. The Applicant is ordered to pay the costs of the application to remove the review application from the archives.

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

Appearance:

For the Applicant: Adv. R Venter, instructed by Mnguni (PNL) Attorneys INC

For the Third Respondent: Adv. F Storm, instructed by Erasmus Scheepers Attorneys

[1] Act 66 of 1995, as amended

[2] Clause 11.2.4 provides: ‘If the record of the proceedings under review has been lost, or if the recording of the proceedings is of such poor quality to the extent that the tapes are inaudible, the applicant may approach the Judge President for a direction on the further conduct of the review application. The Judge President will allocate the file to a judge for a direction, which may include the remission of the matter to the person or body whose award or ruling is under review, or where practicable, a direction to the effect that the relevant parts of the record be reconstructed.’

[2] Clause 11.2.4 provides:

‘If the record of the proceedings under review has been lost, or if the recording of the proceedings is of such poor quality to the extent that the tapes are inaudible, the applicant may approach the Judge President for a direction on the further conduct of the review application. The Judge President will allocate the file to a judge for a direction, which may include the remission of the matter to the person or body whose award or ruling is under review, or where practicable, a direction to the effect that the relevant parts of the record be reconstructed.’

[3] Samuels v Old Mutual Bank (2017) 38 ILJ 1790 (LAC)

[4] (PR193/2019) [2020] ZALCJHB 215; [2020] 11 BLLR 1160 (LC) at para 9

[5] Macsteel Trading Wadeville v Van der Merwe N.O and others (2019) 40 ILJ 798 (LAC)

[6] See Zono where Van Niekerk J held; ‘[11] In the myriad of lapses for which condonation and other relief is sought in the present instance, what is required first is a consideration of the application to reinstate the review application. As I have indicated, this is an element of the urgent application, and requires the court to consider whether good cause has been established. If the reinstatement of the application is refused, then the status of the review application remains one of an application withdrawn by the applicant. In that case, as the above authorities indicate, there is no application before the court and the applications to condone the late filing of the review and to dismiss the review on this and other grounds are rendered moot.”

[6] See Zono where Van Niekerk J held;

‘[11] In the myriad of lapses for which condonation and other relief is sought in the present instance, what is required first is a consideration of the application to reinstate the review application. As I have indicated, this is an element of the urgent application, and requires the court to consider whether good cause has been established. If the reinstatement of the application is refused, then the status of the review application remains one of an application withdrawn by the applicant. In that case, as the above authorities indicate, there is no application before the court and the applications to condone the late filing of the review and to dismiss the review on this and other grounds are rendered moot.”

[7]At para 17

[8] At para 10

[9] Overberg District Municipality v IMATU & others (C 157/18, 8 June 2020) (Per La Grange J) at para 39

[10] At para 17

[11] [1999] 3 BLLR 209 (LAC); See also Collett v Commission for Conciliation, Mediation and Arbitration [2014] 6 BLLR 523 (LAC)