Gema v National Commissioner of South African Police Service and Others (D1972/18) [2021] ZALCD 65 (5 October 2021)

IN THE LABOUR COURT OF SOUTH AFRICA

CASE NO: D1972/18

In the matter between:

X.G Gema Applicant

and

National Commissioner of

South African Police Service 1st Respondent

Minister of Police 2nd Respondent

F.A. Moodley N.O. 3rd Respondent

Safety and Security Sectoral Bargaining Council 4th Respondent

Heard: 4 August 2021

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email, publication on the Labour Court's website and released to SAFLII. The date and time of the hand­ down is deemed to be 10h00 on 05 October 2021.

JUDGMENT

Hiralall AJ

Introduction

[1] This is an application in terms of section 145 of the Labour Relations Act[1] ("the Act") for a review and set aside of the award of the third respondent ("the arbitrator") under case number PSSS543-14/15, dated 2 July 2018 in the arbitration proceedings between the applicant and the first and second respondents ("the employers"). The application is opposed by the first and second respondents ("the employer").

Background

[2] At the time of his dismissal from the South African Police Service, the applicant had six years of service and was stationed at the SAPS Visible Policing Unit in lxopo, KwaZulu-Natal. He was charged with four firearm related offences. The first two charges related to contravention of the Firearms Control Act, 60 of 2000 where it was alleged firstly, that on 20 July 2013, the applicant discharged a firearm in a manner likely to injure or endanger the safety or property of any person or with reckless disregard for the safety or property of any person, in that he shot at the campfire where Constable Hlongwane and his friends were seated; and secondly, that he discharged a firearm in a built up area or public place without good reason to do so. The third and fourth charges related to the Code of Conduct for the Service in that it was alleged that on 20 July 2013 the applicant failed to protect the rights of Constables Hlongwane and Shezi when he fired shots in their direction. According to the applicant, he pleaded guilty to charges 1 and 2, and not guilty to charges 3 and 4, on the advice of his trade union official at the disciplinary enquiry. They both failed to realise that the applicant had acted in private defence and that his actions were legally justified. He was found guilty on charges 1, 2 and 4, and dismissed. He was found not guilty on charge 3. At the arbitration hearing, he challenged the substantive and procedural fairness of his dismissal. The arbitrator found that his dismissal was procedurally unfair but substantively fair.

[3] In view of the issues to be decided and my findings thereon, it is not necessary to set out in further detail the facts of the case on the merits.

[4] The applicant seeks that the third respondent's arbitration award be reviewed, corrected and set aside only to the extent of the third respondent's finding that the applicant's dismissal was substantively fair so that the award is that the applicant's dismissal was not only procedurally unfair but also substantively unfair; that the applicant be reinstated with full benefits retrospective from the date of judgment to the date of dismissal with interest calculated at the prescribed legal rate; that the implementation of the third respondent's award be stayed pending the outcome of the review application; and that costs be paid by the respondents jointly and severally, the one paying the other to be absolved.

[5] The applicant further seeks, through an amended notice of motion, condonation for the late filing of his supplementary affidavit in terms of Rule 7A(8) of the Labour Court Rules.

[6] The applicant also seeks, through his replying affidavit, condonation for the late filing of the replying affidavit and his failure to apply for the matter to be set down within six months after lodging the review application.

[7] The application is opposed by the first and second respondents (the opposing respondents) on the following basis:

7.1 First point in limine: That the review application is deemed withdrawn in terms of clause 11.2.3 of the Practice Manual on account of non-compliance with clause 11.2.2 of the Practice Manual. The applicant's conduct and delay in prosecuting the review application prejudices the first and second respondents insofar as the incurring of unnecessary expenses and effluxion of time.

7.2 Second point in limine: Non-compliance with section 145(5) of the act which places an obligation on the applicant to apply for a date for the matter to be heard within six months of delivery of his review application. The application was served on the 3rd October 2018 and it was not set down within the six month period. There was no application for condonation nor an explanation for the delay from the applicant.

7.3 That the review application is regarded as archived and lapsed on account of non-compliance with clause 11.2.7 of the Practice Manual which provides that an applicant in a review application is required to ensure that all the necessary papers in the application are filed within 12 months of the date of the launch of the application and the registrar is informed in writing that the application is ready for allocation for hearing. This point was raised in the opposing respondents' heads of argument. It was submitted that where this time limit is not complied with the application will be archived and be regarded as lapsed. Accordingly, the court lacks jurisdiction to determine the review application unless good cause is shown and the matter is reinstated by an order of court.

7.4 That the third respondent's evaluation of the evidence was reasonable and there is no merit in the applicant's contention that she committed an irregularity. There was no gross irregularity or impropriety on the part of the third respondent. The applicant has no prospects of succeeding in his review application as the award by the third respondent is one that a reasonable decision maker would have reached in relation to the totality of the evidence before her.

[8] I will deal with the preliminary points first.

Chronology of events

[9] A brief summary of the chronology of events that transpired after the review application was instituted follows below and has been extrapolated from the affidavits filed by the parties as well as other documents forming part of the record.

[10] The review application was launched on 4 October 2018.

[11] The registrar issued four Rule 7A(5) notices dated 29 October 2018, 18 February 2019, 24 April 2019 and 6 June 2019. The applicant concedes that the record was to be filed within 60 days of the 6 June 2019, and not 15 July 2019 as earlier contended by him.

[12] The record was filed and served on the first and second respondents on 2 September 2019.

[13] An amended record was filed and served on the opposing respondents on 6 November 2019.

[14] The applicant filed his supplementary affidavit, together with an amended notice of motion seeking further relief in the form of condonation for the late delivery of the supplementary affidavit, on 31 December 2019.

[15] The applicant applied for a trial date on 22 January 2020.

[16] The respondent's answering affidavit was filed and served on 19 February 2020. In the answering affidavit, the opposing respondents seek condonation for the late delivery of the answering affidavit, and raise two points in limine

• That the review application is deemed to be withdrawn for non-compliance with the provisions of clause 11.2.2

• Non-compliance with the provisions of section 145(5) of the Act which requires the applicant to apply for a date for the matter to be heard within 6 months of the delivery of the application.

[17] The applicant filed his replying affidavit on 5 March 2020. In his replying affidavit, the applicant raises the following points:

• That despite the late delivery of the opposing respondents' answering affidavit, he was not opposing their application for condonation;

• That the respondents have made bold and general submissions of denial throughout the answering affidavit without supporting such from either the transcript or the bundle of documentary evidence, that it was therefor irregular and fatally defective, and that the review application should therefor stand as unopposed;

• The applicant denies that the review application is deemed to be withdrawn;

• The applicant applies for condonation for the late filing of the replying affidavit and his failure to apply for the matter to be set down within six months after lodging the review application. (non-compliance with the provisions of section 145(5));

[18] In his heads of argument, the applicant pursues the following arguments:

• That the opposing respondent's answering affidavit is irregular and fatally defective for the reasons outlined above, and that the review application should therefor stand as unopposed;

• That the review application is not deemed withdrawn for non-compliance with the provisions of clause 11.2.2;

• That he has applied for condonation for the late delivery of his supplementary affidavit;

• That he has applied for condonation in respect of the late delivery of his replying affidavit, and for non-compliance with section 145(5) of the Act.

[19] In the respondent's heads of argument, the following arguments are pursued:

• That the review application is deemed to be withdrawn on account of non-compliance with the provisions of clause 11.2.2;

• That the review application is further considered as lapsed for non-compliance with the provisions of clause 11.2.7, that it is

therefor no longer properly before the court, and that the court lacks jurisdiction to hear the review application unless good cause is shown and the matter is reinstated by an order of court.

[20] Arising from the chronology of the events and the arguments, the question to be decided is whether this court has jurisdiction to determine the review application.

Issues to be decided

[21] Whether this court has jurisdiction to determine the review application.

The Act, the Rules and the Practice Manual

[22] It is trite that a review application is by its nature an urgent application[2]. This is illustrated in the time periods stipulated in the Act, the Rules and the Practice Manual.

[23] Section 145 of the Act which deals with reviews to the Labour Court provides as follows:·

'(5) Subject to the rules of the Labour Court, a party who brings an application under subsection (1) must apply for a date for the matter to be heard within six months of delivery of the application, and the Labour Court may, on good cause shown, condone a late application for a date for the matter to be heard.'

[24] The wording of section 145(5) is clear. It is also clear that a substantive application for condonation in accordance with the requirements set out in Rule 7 of the Labour Court Rules must be made for non-compliance.

[25] Rule 7A(6) provides that once the registrar makes available to the applicant the record of the proceedings to be reviewed, the applicant must make copies and furnish the registrar and each of the parties with a copy of the record. In addition, Rules 7A(8)-(10) set out specific timelines for the filing of further affidavits:

'(8) The applicant must within 10 days after the registrar has made the record available either –

(a) by delivery of a notice and accompanying affidavit, amend, add to or vary the terms of the notice of motion and supplement the supporting affidavit; or

(b) deliver a notice that the applicant stands by its notice of motion.

(9) Any person wishing to oppose the granting of the order prayed in the notice of motion must, within 10 days after receipt of the notice of amendment or notice that the applicant stands by its notice of motion, deliver an affidavit in answer to the allegations made by the applicant.

(10) The applicant may file a replying affidavit within five days after receipt of an answering affidavit.'

[26] The Practice Manual, which came into effect on 2 April 2013, then sets out specific timelines for the further steps to be followed:

'11.2 Applications to review and to set aside arbitration awards and rulings

11.2.1 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.

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 a record within the prescribed period, the applicant will be deemed to have withdrawn the application, unless the applicant has during that period requested the respondent"s consent for an extension of time and consent has been given. If consent is refused, the applicant may, on notice of motion supported by affidavit, apply to the Judge President in chambers for an extension of time. The application must be accompanied by proof of service on all other parties, and answering and replying affidavits may be filed within the time limits prescribed by Rule 7. The Judge President will then allocate the file to a judge for a ruling, to be made in chambers, on any extension of time that the respondent should be afforded to file the record.

11.2.4 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.'

[27] Clause 11.2.7 provides as follows:

'11.2.7 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.'

[28] In Samuels v Old Mutual Bank[3], the Court stated as follows with reference to the Practice manual:

'[14] The consolidated practice manual which came into operation on 2 April 2013 constitutes a series of directives issued by the Judge President over a period of time. Its purpose is, inter alia, to provide access to justice by all those whom the Labour Court serves; promote uniformity and/or consistency in practice and procedure and set guidelines on standards of conduct expected of those who practise and litigate in the Labour Court. Its objective is to improve the quality of the court's service to the public, and promote the statutory imperative of expeditious dispute resolution.

[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 in the practice manual and the Rules. Its provisions therefore, are binding. The Labour Court's 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.' (footnotes omitted) See also Macsteel Trading Wadeville v Van Der Merwe NO and others[4]

[29] In Matsha and Others v Public Health and Social Development Sectoral Bargaining Council and Others[5], the court stated as follows:

'[22] The Practice Manual is not just some sort of guideline which litigating parties may or may not comply with at their leisure, but has binding force, just like the Labour Court Rules. …'

Analysis

Non-compliance with clause 11.2.2 of the Practice Manual

[30] The first point raised by the opposing respondents is that the review application is deemed to be withdrawn on account of non-compliance with clause 11.2.2 of the Practice Manual. However, according to the applicant, the record was dealt with timeously since it was initially filed timeously on 2 September 2019.

[31] There is a discrepancy as to when the applicant received the record between 6 June 2019 and 15 July 2019. The dates differ between the supplementary affidavit, the replying affidavit and the heads of argument. However, the applicant stated as follows in his replying affidavit:

'I am advised that in respect of my submission in my supplementary affidavit at paragraph 15.2 had (sic) a typographical error in respect of the last Rule 7A (Notice) being the 15th of July 2019 was in fact the 6th of June 2019 and that my supplementary affidavit then was due on the 16th of September 2019 instead of the 18th of October 2019.'

[32] In the applicant's heads of argument, he reverted to the contention that the last Rule 7A Notice was issued on 15 July 2019 and that the days were to be counted from that date.

[33] There were a number of issues of the Rule 7A Notice attached to the applicant's papers indicating that they were all received by the applicant's attorney's offices. According to the applicant, this was due to delays by the third and fourth respondents in obtaining the recordings for all of the dates of the hearing.

[34] In any event, if one takes the 6 June 2019 as the correct date, the applicant filed the record on 2 September 2019 which according to my calculation is on the 60th day and within the prescribed time. This is the date which the applicant's attorneys considered to be the correct date from the emails appearing below.

[35] It appears that the applicant's attorney discovered at some point whilst preparing the supplementary affidavit that the record was incomplete. The trail of emails[6] that followed between the applicant's attorney, Ms A. Naidoo, and the opposing respondents' attorneys, Ms F. Seedat or Ms Pillai, appears hereunder:

The emails:

1. 11 September 2019

'Dear Ms F. Seedat

Kindly take note that the Applicant's Rule 7A(8) supplementary affidavits are due on the 16th and 17th of September 2019 respectively ....

In the circumstances I humbly request an indulgence that you consider consenting to extending me time till the end of September to serve same.'

2. 11 September 2019

'Hi Angeni

No problem at all. Hope you get well soon. Let me know if you need more time.'

3. 2 October 2019

'Dear Ms F Seedat,

'We thank you kindly for granting ourselves an extension in terms of service of the Applicants (XG Gema and ***) Supplementary Affidavits to the end of September 2019. However due to a medical incapacitation (tendonosis) concerning Ms Naidoo's elbow, she is having difficulty in submitting the Supplementary Affidavits timeously. (Attached herewith medical certificates)

in the circumstances we humbly request an indulgence that you consider consenting to extending the time as follows to serve same:

1. XG Gema Extension till the 7th October 2019

2. …'

4. 2 October 2019

Dear Sir/ Madam

'I consent in respect of the C--- matter only. The other matter is not being handled by me. Please refer it to the correct attorney.'

5. 2 October 2019

'Dear Ms Seedat

Thank you for your expedited response herein and for granting your indulgences in terms of an extension to serve the supplementary affidavits. Please note that the XG Gema matter is also being handled by yourself. Kindly find herewith attached notice of opposition from your office.'

6. 3 October 2019

'Dear Angeni

The matter has Ms Pillai's reference number. She has been copied on this email. Please communicate with her further.'

7. 3 October 2019

Dear Ms Seedat

…

We are now in a predicament whereby you have granted the extension for for XG Gema and only notified ourselves today that Ms Pillai is the attorney on board for this matter. Ms Pillai has been ignoring all of our correspondences and telephone calls for labour court and arbitration matters. We cannot seem to get hold of her for any matters.

Kindly urgently advised ourselves in terms of the way forward as this is no fault of ours….'

8. 3 October 2019

I will talk to Ms Pillai regarding the extension that I have granted previously. I do not have reason to believe that she will take issue with that as I had not at the time realized that you were referring to two matters. However now that I see that the matter is Ms Pillai's I cannot grant any further extension without her input. '

9. 14 October 2019

'Dear Ms Pillai

As you are aware we have previously requested an indulgence in granting an extension of time to file XG Gema's supplementary affidavit due to Ms Naidoo's medical incapacitation (tendonosis) concerning her elbow. However, we have not received a response thereto. Typescript has not provided a complete transcript in respect of one of the dates on the CD whilst the transcript having numerous errors on it. The missing date consists of the applicant's evidence in chief which is material and relevant to the review prosecution. We thus request an indulgence in the extension of time to the end of October 2019, depending on Typescript having the transcript ready and not encountering any audibility challenges. We shall thereafter serve the amended record and the Supplementary Affidavit or alternatively advise on any challenges encountered in this regard.'

10. 30 October 2019

Kindly take note that we have now received the corrected transcript from TypeScript. We thus request an indulgence in granting an extension to the 15th November 2019 to serve the Applicant's amended record and supplementary affidavit.'

11. 12 November 2019

' Dear Ms Pillai

As you know we have filed the record within the peremptory timeframe provided in the Practice Directive on the 2nd of September 2019. We respectfully requested an extension to file our Supplementary Affidavit due to the medical incapacitation of our legal practitioner. However, whilst in the process of drafting our Supplementary Affidavit, we ascertained that there were numerous errors in the transcript, which correspondence to the transcription company we have cc'd you on.

We have requested an extension to file the corrected transcript as soon as it was furnished to ourselves. We have not received an objection from yourselves to date and we therefore accept your indulgence in this regard for which we thank you kindly.'

[36] Apart from the fact that it is a discourtesy from the State Attorney's office not to respond to emails concerning current litigation, a number of further facts emerge from the above emails. Firstly, it was only on 11 September 2019 that the applicant's attorney commenced a request for an extension of time to file the supplementary affidavit. However, Rule 7A(8) requires that the supplementary affidavit, if that was the applicant's election, must be filed within 10 days after the record is made available (and not within 10 days of the filing of the record as contended by the applicant). Secondly, it was on 30 October 2019 that the applicant's attorney commenced a request for an extension to file the amended record. However, the 60 day period for the filing of the record had passed on 2 September 2019. Even if the date of the last notice was taken as 15 July 2019, which the applicant was wont to contend from time to time, the further period of 60 days expired on 11 October 2019. Up to that date, any extensions sought were for the late filing of the supplementary affidavit. Thirdly, the applicant's attorney was of the view that no reply from the opposing respondents' attorneys equated to consent to the extension. Again, by the time the attorney drew this inference, which in my view she was not entitled to do, the 60 day period had expired and the review application was deemed withdrawn.

[37] It was further submitted by the applicant's attorney in the heads of argument:

'The Applicant filed his record approximately a month in advance on the 2nd of September 2019 well within the requisite 60 days which would have lapsed on the 4th of October 2019. The Applicant in the process of drafting its Supplementary Affidavit, it (sic) transpired that an entire one day

appearance was missing. Typescript, the transcription company conceded to erroneously not transcribing the missing one day.[7]'

[38] As stated earlier, the above dates and the calculations are inconsistent with the dates in the applicant's replying affidavit.

[39] Clause 11.2.3 provides an applicant who is experiencing difficulties in filing the record timeously with options to avoid falling foul of clause 11.2.2. The first option is for the applicant to request the respondent's consent for an extension of time for the filing of the record. If the consent is refused, the applicant's second option (only after the respondent's consent has first been sought) is to apply, on notice of motion supported by affidavit, to the Judge President in chambers for an extension of time. If the applicant fails to file the record within the prescribed period, and none of these options has been invoked, the application will be deemed to be withdrawn. It is fair to interpret the provisions to mean that these options must be invoked before the expiry of the 60 day period. Once a review application is deemed to be withdrawn, the applicant may still apply for condonation for non-compliance with Clause 11.2.2. and for reinstatement of the review application.

[40] In the present case, it was after the expiry of the 60 day period on 2 September 2019 that the applicant's attorneys discovered that the filed record was incomplete. The further course open to an applicant in such a case was an application for condonation for non-compliance with Clause 11.2.2. and for reinstatement of the review application. The applicant failed to take any steps to remedy the position.

[41] In somewhat similar circumstances in South African Police Services v Coericius and Others[8], the court stated as follows:

'[12] The applicant is essentially arguing that it does not fall foul of clause 11.2.3 on the basis that it filed a part of the record within 60 days of launching the review. This simply cannot be correct. Clause 11.2.3 of the Practice Manual provides that an applicant is to request an extension of time to obtain the full record from a respondent, or approach the Judge President with an application for extension, if consent is not forthcoming, if it fails to file the record within the prescribed 90 (sic) day period. The notion that an applicant can file a record in 'dribs and drabs' and that the dies of 60 days only starts running when it is of the opinion that the record is adequate, militates against the principle that a review is by its very nature urgent. This principle of urgency is set out in Clause 11.2.7 of the Practice Manual and has been repeated in numerous judgments of this Court. Any interpretation of the Practice Manual that accords the word 'record' in clause 11.2.3, the meaning 'a part of the record', as submitted by the applicant is absurd on a plain reading of the Clause, and in addition would be contrary to its purpose.

[14] Ultimately, it is submitted by the applicant, that the first respondent is putting form before substance and that a proper case has been made out in the supplementary founding affidavit for condonation for the non-compliance with "the prescripts of this Court". As stated above, the supplementary affidavit contains averments supporting condonation to be granted for the its' (sic) late filing, and in that respect provides detailed information as to the efforts of the state attorney to obtain the record of the ruling and arbitration sought to be reviewed.

[15] The Court was not favoured with a condonation application apart from the averments contained in the supplementary affidavit....' (footnotes omitted) (my emphasis)

[42] In Macsteel Trading[9], referring to the provisions of clause 11 of the Practice Manual, the Labour Appeal Court stated as follows:

'[20] A primary object of the Act is to promote the effective resolution of labour disputes, integral to which is the speedy resolution of disputes. As stated by the Constitutional Court in Toyota:

'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 the employer who may have to reinstate workers after many years.'

[21] Clause 11 of the Practice Manual of the Labour Court ("Practice Manual") [which] was adopted to give effect to the requirement of expedition, as contemplated in the LRA and the Rules ...

[22] The underlying objective of the Practice Manual is the promotion of the statutory imperative of expeditious dispute resolution. It enforces and gives effect to the rules of the Labour Court and the provisions of the LRA. It is binding on the parties and the Labour Court '

[43] I align myself with the reasoning in the above judgments.

[44] Although the record was initially filed timeously, and the delay in filing an amended record thereafter amounted to only a further two months, the fact that it later (after 2 September 2019) turned out to be incomplete rendered compliance with clause 11.2.2 of the Practice Manual incomplete whatever the reason might be. The fact that the complete record was filed in excess of 12 months after the 4 October 2018 does not assist the applicant. I will deal with this later.

[45] The court in The South African Police Services v Coericius and others[10], pointed out that the Practice Manual containing Clause 11.2.3 has been in force since 2013, is binding on the parties, and was

confirmed as such by the LAC for at least the past four years. Speaking of the State Attorney, the learned judge stated that it is surely not too formalistic to expect that office to comply with its prescripts when it is unable to file a record within 60 days. In my view, the same applies to all legal practitioners.

[46] In the absence of the applicant taking any of the steps referred to above, the review application remains deemed to be withdrawn.

Non-compliance with section 145(5) of the Act

[47] The second point in limine raised by the opposing respondents is that the applicant has not complied with the provisions of section 145(5) of the Act which required the applicant to apply for a date for the matter to be heard within 6 months of the delivery of the application. The applicant responds as follows in his replying affidavit:

'Ad para 8.2

The First and Second Respondent's submissions herein are noted. I am advised that my replying affidavit has been accompanied with a condonation application for the late filing of my replying affidavit and failure to apply for the matter to be set down within six months after having lodged my review application.'

[48] Quite apart from the fact that this court does not have before it a substantive application for condonation in terms of the rules, the form in which the applicant sought condonation, being as it was in the replying affidavit, did not give the opposing respondents an opportunity to oppose it. What the court does have is the following which is contained in the replying affidavit, together with the reasons for the delay, the prospects of success and prejudice:

'44.2 I further respectfully pray for condonation for not applying for my matter to be heard within six months of lodging my review application as per section 145(5) which with respect I submit that I have shown infra good cause for failing to comply with such. At no point did my legal representatives sit back on their laurels, at all times my legal representatives made every effort to ensure that my matter was being prosecuted expeditiously.'

[49] The review application was launched on 4 October 2018. The six month period expired on 3 April 2019. According to the applicant, his attorneys received four Rule 7A(5) notices from the Labour Court registrar dated 29 October 2018, 18 February 2019, 25 April 2019 end 6 June 2019 which was due to the fact that the third and fourth respondents were experiencing difficulty obtaining all the records of the arbitration hearing. According to the applicant, his attorneys thereafter had 60 working days from the last notice to file the record. This contention arises clearly from an incorrect interpretation of clause 11.2 2 which simply states that the 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.

[50] Be that as it may, the review was launched on 4 October 2018. The 6 month period expired on 3 April 2019. That is the issue which the applicant was required to address.

[51] There is no application for condonation for the court to consider.

Non-compliance with clause 11.2.7 of the Practice Manual

[52] In Overberg District Municipality v IMATU obo Spangenberg and Others, the Labour Court[11], per Lagrange J stated as follows:

'[24] The effect of a review application which is deemed to have been withdrawn, lapsed or dismissed in terms of the provisions of clauses 11.2.3, 11.2.7 and 16.3 of the manual respectively is that to all intents and purposes it ceases to exist as a pending application and this is not akin to a mere suspension or stay. Nothing in the jurisprudence suggests that the legal consequences of the three different terms used to deem a review application inactive are any different from each other.'

[53] This view was reiterated in SG Bulk, A Division of Supergroup Africa (Pty) Ltd v Khumalo and another in re: Khumalo and another v Nkuna and others[12] per Moshoana J where the following was stated:

' [7] It is by now settled law in this Court that where a review application is deemed withdrawn, there is no longer a live matter to be entertained. …'

[54] That being the case, it is therefor not necessary to consider any further issues arising after the review application was deemed to be withdrawn. However, I will deal with the issue of non-compliance with clause 11.2.7 for the sake of completeness.

[55] The contention that the review application has lapsed for non-compliance with clause 11.2.7 was raised for the first time in the opposing respondents' heads of argument. It is however, a point which the court would be entitled, and in fact even obliged, to raise mero motu as it goes to the heart of the question whether the review application is properly before the court.

[56] In Macsteel Trading[13], in respect of the position where the Labour Court declined to deal with the issue of a lapsed review application and proceeded to consider the review application on the merits, the Labour Appeal court stated as follows:

' [26] Thus, having failed to strike the matter from the roll, it was impermissible for the Labour Court to decline to deal with the issue of the delay because Macsteel did not bring a rule 11 application. The correct approach was for the Labour Court to afford Macsteel an opportunity to bring a rule 11 application.

[27] The Labour Court did not adopt this approach. It instead declined to deal with the issue of the undue delay and proceeded to determine the merits of the review application, which had already lapsed for non-compliance with clause 11.2.7 of the Practice Manual. The Labour Court determined the "lapsed application" in the absence of a substantive reinstatement application and an order reinstating the review application. Put simply; the Labour Court determined the review application when it had no jurisdiction to do. This constitutes a basis for interference on appeal. The appeal must accordingly be upheld, and the order of the Labour Court set aside and replaced with an order striking the matter from the roll.'

[57] My interpretation of the above judgment is that essentially the Labour Court was unable to dismiss the matter without there being a Rule 11 application. However, it was obliged to deal with the fact that it had no jurisdiction to determine the review application since it had lapsed for non-compliance with clause 11.2.7.

[58] In the present case, the review application was launched on 4 October 2018. The replying affidavit was filed on 5 March 2020, some 17 months later. This court would be obliged to find that it has no jurisdiction to determine the review application since it would have lapsed for non-compliance with clause 11.2.7.

[59] The point is noted that the applicant's attorneys experienced difficulties in obtaining the record from the third and fourth respondents, and that the applicant's attorney was incapacitated with tendonosis for the months of October and November 2019. It is also noted that the applicant has applied for condonation for the late filing of the supplementary affidavit (although the calculation of the period of delay was premised on an incorrect interpretation of Rule 7A(8)).

[60] However, the review application was deemed withdrawn in terms of the provisions of clause 11.2.3 by the time the supplementary affidavit was filed. In fact, even if the applicant was able to cross that bridge, the review application would by then also have lapsed on account of non-compliance with clause 11.2.7 of the Practice Manual. The points raised by the applicant in respect of the answering affidavit and the fact that the applicant applied for a trial date on 22 January 2020 do not take the matter further.

Conclusion

[61] In Matsha and others v Public Health and Social Development Sectoral Bargaining Council and others[14], the court stated as follows

[28] ... Judges want to be seen to act fairly, and are often loathe to visit a litigant with the culling of the matter on the merits because of failures committed by the litigant in the course of the litigation process. Often, legal practitioners who so fail, plead that their individual clients should (sic) be prejudiced by this and will suffer if the Court does not come to their aid. That way, litigants get away with things they should not get away with, and this creates the fertile soil in which this kind of conduct continues to thrive. At some point one has to say - enough is enough. The Practice Manual has been in effect for six years. It says a review application is urgent. It also says the prosecution of the review must be completed in 12 months. It provides that if this cannot be complied with, then at least good cause must be shown – i.e. a proper condonation application must be brought. Where this does not happen, and the other party asks for the dismissal of the review, then fairness to the review applicant and its right to review must for once sit in the back seat and the review application must be dismissed.' (my emphasis)

[62] In the present case, the opposing respondents have not filed a Rule 11 application for the dismissal of the review application. However, the status of the review application remains that it is deemed withdrawn due to non-compliance with the provisions of clause 11.2.2, and in the absence of an application to revive or reinstate the review application, this court has no jurisdiction to determine the review application. In the words of the court in Macsteel, this court is obliged to strike the matter from the roll on the grounds of lack of jurisdiction

[63] There were several non-compliances by the applicant in the prosecution of the review application. Ultimately, the review application ceased to exist as a pending application and there is no longer a live matter to be entertained. In the absence of a substantive application to reinstate it, the application should be struck from the roll on the grounds of lack of jurisdiction.

In the result the following order is made:

1. The review application is struck from the roll for lack of jurisdiction.

2. Each party is to pay its own costs,

HIRALALL AJ

APPEARANCES

For the Applicant: Adv. A Naidoo

Instructed by:

For the Respondent: Adv. NM Naidoo

[1] Act 66 of 1995

[2] Clause 11.2.7 of the Practice Manual

[3] (2017) 38 ILJ 1790 (LAC) at para 14-15

[4] (2019) 40 ILJ 798 (LAC)

[5] (JR2380/2016) [2019] ZALCJHB 128; (2019) 40 ILJ 2565 (LC) (7 June 2019)

[6] Pages 203 to 223 Annexures to the Replying Affidavit

[7] Para 3.1.3 Applicant's Heads of argument

[8] (C263/19) [2021] ZALCCT 64 (30 August 2021):

[9] Supra

[10] Supra

[11]

[12] JS393/19 & JR537/13; 13 April 2021

[13] supra

[14] Supra