Gauteng Dept of Health v NUPSAW obo Xenge and Others (JR2461/2016) [2021] ZALCJHB 318 (6 October 2021)

THE LABOUR COURT OF SOUTH AFRICA

(HELD AT JOHANNESBURG)

Not reportable

Case No: JR 2461/2016

In the matter between:

GAUTENG DEPT OF HEALTH Applicant

and

NUPSAW obo XENGE & 5 OTHERS 1st Respondent

ARNE SJOLUND N.O 2nd Respondent

PUBLIC HEALTH AND SOCIAL DEVELOPMENT

BARGAINING COUNCIL 3rd Respondent

Date of application: 6 October 2021 (via Zoom).

Date of judgment: 6 October 2021. Judgment delivered by email.

JUDGMENT

VAN NIEKERK J

[1] When this matter was called this morning, the parties’ representatives agreed that the Rule 11 application before the court should be removed from the roll, with no order as to costs. The applicant in the rule 11 application, the third respondent in the review application, seeks to dismiss the application for review on account of a failure by the applicant in the review application to prosecute the application with due diligence. There are also pending enforcement proceedings, in terms of which the applicant in the Rule 11 application seeks to enforce the arbitration award. These are not on the roll.

[2] The arbitrator ruled during the course of the proceedings that the issue before him that the individual applicants had been dismissed on account of alleged misconduct during the course of a strike, and that he was required to determine whether the dismissal was procedurally and substantively fair. The three charges brought against the employee’s related to what was alleged to be misconduct by them; there was no charge to the effect that they had participated in an unprotected strike. The applicant (the respondent in the arbitration proceedings) failed to call any witnesses. Given that the onus of proof rested on the applicant to establish that the dismissal of the employees was fair, the arbitrator (unsurprisingly) concluded that the applicant had failed to discharge the onus and that the employees had been unfairly dismissed.

[3] The arbitration award under review is dated 15 September 2016. The review application was filed on 16 November 2016, within the six-week period prescribed by section 145 of the LRA. In terms of the practice manual, the applicant was obliged to have filed the record of the proceedings not later than 60 days after having been advised that the record had been filed in the office of the registrar. On 16 November 2016, the bargaining council advised the applicant’s attorney that the digital recordings and the bundle of documents had been filed with this court on the same date. The record of the proceedings, in the form of a six-page transcript of the proceedings, was filed only on 8 September 2017, more than 10 months later.

[4] In terms of the practice manual, when a party fails to file the transcript of the proceedings under review within the required time limit, without seeking an extension of the applicable 60-day period by consent or by way of a directive from the judge president, the review application is deemed to have been withdrawn. Clause 11 of the Practice Manual reads as follows:

11.2.2 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.

11.2.3 If the applicant fails to file the record within the prescribed period, the applicant will be deemed to have withdrawn the application, unless the applicant has during that period requested that the respondent’s consent for an extension of time and consent has been given. If consent is refused, the applicant may, on notice of motion supported by affidavit, applied to the Judge President in Chambers for an extension of time…

11.2.7 A review application is by its nature an urgent application. An applicant in the 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 argument) and the registrar is informed in writing that the application is ready for allocation for hearing. If this time limit is not complied with, the application will be archived and be regarded as lapsed unless good cause is shown by the application should not be archived or be removed from the archive.

[5] In Macsteel Trading Wadeville v Van der Merwe N.O and others (JA 67/2016 12 December 2018), the Labour Appeal Court noted that the underlying objective of the practice manual is the promotion of the statutory imperative of expeditious dispute resolution. In that case, the court recorded that the applicant had failed to ensure that all of the necessary papers were filed within 12 months and advise the registrar that the application was ready for allocation for hearing. In consequence, the LAC held that the Labour Court had no jurisdiction to determine the issue of undue delay since the review application was archived and regarded as lapsed consequent on the applicant’s failure to comply with the practice manual. There was no substantive application for reinstatement of the review application, nor was there any application to condone the undue delay in filing the record. In these circumstances, the Labour Court had determined a review application when it had no jurisdiction to do so, and its order was substituted with an order in terms of which the application was struck from the roll.

[9] The present application concerns clause 11.2 of the practice manual, and in particular, the obligation to file the record within a 60-day period. The applicant did not file the record within the prescribed period, nor did it seek consent or leave to have the period extended. The record was filed more than 10 months late, with no application for condonation. The review application is thus deemed to have been withdrawn by the respondent. In the absence of an order reinstating the application, there is no review application that serves before the court.

[10] For the purposes of the Rule 11 application, given that the review application is deemed to have been withdrawn, there is thus no application to dismiss. The appropriate order in these circumstances is to remove the Rule 11 application from the roll. It remains for the parties to consider their respective positions in regard to the status of the arbitration award and the attempts to enforce that award, and to take whatever steps they may be advised to take in this regard.

[11] Insofar as costs are concerned, this is a matter where the applicant in the Rule 11 application ought properly to have been alert to the deemed withdrawal of the review application. In any event, given the existence of a collective bargaining relationship between the parties, an order for costs is not appropriate. I did not understand either party’s representative to contest the terms of the order reflected below.

I make the following order:

1. The Rule 11 application is removed from the roll, with no order as to costs.

André van Niekerk

Judge of the Labour Court of South Africa.

Appearances:

For the Applicant in the Rule 11 application: Union official

For the First Respondent: Adv Z Buthelezi, instructed by the State Attorney