General Industries Workers Union of South Africa and Another v Clover SA (PTY) Ltd and Others (JR 2776/16) [2022] ZALCJHB 229 (16 August 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 2776/16

In the matter between:

GENERAL INDUSTRIES WORKERS

UNION OF SOUTH AFRICA First Applicant

BONGA XOKISO

Second Applicant

and

CLOVER SA (PTY) LTD

First Respondent

NOMSA MBHELE N.O.

Second Respondent

COMMISSION FOR CONCILIATION

MEDIATION AND ARBITRATION

Third Respondent

Heard: 4 August 2022

Delivered: 16 August 2022

This judgment was handed down electronically by circulation to the parties' representatives by email. The date for hand-down is deemed to be on 16 August 2022.

JUDGMENT

PRINSLOO, J

Introduction

[1] This matter has an unfortunate history and some context must be provided.

[2] The Applicants filed an application on 21 December 2016 to review and set aside an arbitration award that was issued on 8 November 2016. The review application was not prosecuted in accordance with the prescripts of the Rules of the Labour Court[1] or the provisions of the Practice Manual of the Labour Court of South Africa[2] (Practice Manual).

[3] On 27 August 2018, the Applicants filed an application seeking the revival of the review application, which had lapsed, and an order directing that the prosecution of the review application be proceeded with within a period of 30 days. The said application was enrolled for hearing on 17 June 2020. This is evidently almost two years after the said application was launched and three and a half years after the review application was filed.

[4] Judgment was handed down in accordance with the provisions of the directives issued in respect of access to the Labour Court and applicable during the Covid-19 pandemic and it appears that the judgment was sent to the parties electronically on 23 July 2020. The Court (per Nkutha-Nkontwana J) dealt with the merits of the application and an order was issued to the effect that the Applicants were permitted to reinstate the review application, the Registrar was directed to enrol the review application for hearing on the opposed motion Court roll and the Applicants were ordered to file the missing parts of the record within 30 days, failing which the order reinstating the review application would automatically lapse.

[5] The review application was enrolled for hearing on the opposed motion Court roll for 4 August 2022, more than two years after the Registrar was directed to enrol the matter for hearing, and more than five and a half years after the filing of the review application.

[6] I must express concern about the state of affairs as the purpose of the Labour Relations Act[3] (LRA) is inter alia the effective resolution of labour disputes, and the processes introduced by the LRA are intended to bring about the expeditious resolution of labour disputes. The detrimental implications of delays are obvious[4].

[7] This Court has accepted that a review application is by its nature an urgent application and that it requires prosecution with diligence

and urgency[5]. This is supported by the Practice Manual wherein an applicant in a review application is required to ensure that all the necessary papers in the application are filed within twelve months of the date of the launch of the application. The amendments to section 145 of the LRA, which took effect on 1 January 2015, are specifically aimed at expediting the prosecution of review applications and inter alia requires that a party who brings an application for review to apply for a hearing date within six months of launching the review application.

[8] On 27 July 2022, a mere five days before the hearing of the review application, the First Respondent’s (Clover) attorneys filed a supplementary affidavit, to which the Applicants filed an answer. Clover filed a replying affidavit and when the matter was heard, the issues raised in the supplementary affidavit required this Court’s attention.

[9] Ms Taylor, for Clover, submitted that they had raised a point in limine regarding this Court’s jurisdiction to adjudicate the matter. She submitted that the point in limine should be upheld and that the matter should be struck off the roll, with costs de bonis propriis.

The issues raised in the supplementary affidavit

[10] Clover’s attorney of record, Mr Naidoo, from J R Attorneys Incorporated (JRA), deposed to the supplementary affidavit and stated that the purpose of the affidavit was to bring material facts to this Court’s attention, relating to the improper set down of the Applicant’s review application, after the reinstatement of the review application automatically lapsed, in terms of the Court order of 23 July 2020.

[11] Clover sought leave to file the further affidavit as its contents are directly relevant to the Applicant’s review application. I am inclined to allow the supplementary affidavit as I am of the view that the issues raised therein need to be determined and that the review application should no longer be delayed by interlocutory issues, which may arise again if this Court does not deal with them decisively.

[12] The gist of Clover’s case is that this Court does not have jurisdiction to entertain the Applicant’s review application. This submission is based on the sequence of events and the parties’ understanding of the Court order of 23 July 2020.

[13] The Court order of 23 July 2020 permitted the Applicant to reinstate the review application, on condition that the missing parts of the record be filed within 30 days, failing which the order reinstating the review application would automatically lapse. The missing part of the record had to be filed by 4 September 2020.

[14] On 13 August 2020, the Applicant’s legal representatives, Bayi Attorneys (BA), directed correspondence to Clover’s legal representatives, JRA, wherein it stated that the Court file was uplifted and that the missing portions of the record of the arbitration proceedings before the Commission for Conciliation, Mediation and Arbitration (CCMA) were noted and that a copy was requested and obtained from the transcribers. BA recorded that the documentary record was requested from the CCMA and the efforts made to obtain the documentary record were listed. BA advised that they were only able “to partially comply with the order of Court and have indexed the record and sent same to you”. BA requested an indulgence to file the contents of the CCMA file and undertook to file it upon receipt thereof from the CCMA.

[15] On 18 August 2020, JRA responded to the letter of 13 August 2020 and it was recorded that the Applicant had failed to comply with the Court order of July 2020, that JRA had not received the missing portions of the record and that it was not able to provide the Applicants with an indulgence, as was requested. JRA specifically recorded that the reinstatement of the Applicant’s review application had lapsed and that consequently, the review application was archived again.

[16] On 29 September 2020, the Applicants served and filed the missing portions of the CCMA record of proceedings. The parties are ad idem that it was only the documentary record of the arbitration proceedings that was filed on 29 September 2020.

[17] On 9 October 2020, the Applicants’ legal representatives served Rule 7A(6), (8)(b) and (9) notices on JRA. Mr Naidoo stated in his affidavit that, by serving the aforesaid notices on 9 October 2020, the Applicants’ legal representatives ‘continued with litigation of the review – as though the reinstatement order was non-existent”.

[18] The Applicants’ version is that the record was received from the transcribers on 12 August 2020 and that it was served on JRA on 13 August 2020, well within the 30-day period prescribed in the Court order of 23 July 2020. Ms Rheeder of JRA deposed to an affidavit wherein she disputed that the email of 13 August 2020, containing the missing parts of the record, was sent to her or that the missing portion of the record was served on JRA.

[19] Clover’s case is that to date, the Applicants have failed to serve the missing portion of the record as ordered and consequently the Applicants’ review application is automatically lapsed and archived. Without another application for the revival of the review application, this Court does not have jurisdiction to adjudicate the review application.

Analysis

[20] The Court order of 23 July 2020 ordered the Applicant to “file the missing parts of the record within 30 days from the date of this order…” The question is whether there was compliance with the Court order. If there was no compliance, the reinstatement of the review application would have lapsed automatically, but if the order was complied with, the application remains reinstated and is to be enrolled for hearing.

[21] The missing part of the record had to be filed by 4 September 2020.

[22] The Applicants’ version is that the missing part of the transcribed record was served on JRA on 13 August 2020, after it was obtained from the transcribers. Ms Rheeder disputed that the email of 13 August 2020, containing the missing parts of the record, was sent to her or that the missing portion of the record was ever served on JRA.

[23] It is common cause that the documentary record was only served on JRA on 29 September 2020, evidently after the expiry of the 30-day period, as per the Court order of 23 July 2020. On Clover’s own version it was not ‘the missing portions of the transcribed record as directed under paragraph 13 of the judgment.” In my view, this shows a clear understanding that the judgment ordered the filing of the missing part of the transcribed record.

[24] Be that as it may, during argument, Ms Taylor submitted that the Applicants had to file the entire record, transcribed and documentary, within 30 days in terms of the Court order of 23 July 2020, failing which the reinstatement of the review application would lapse.

[25] It is trite that effect must be given to the plain words of a judgment, read in context of the whole judgment.

[26] In casu, the Court in conclusion recorded that: “[s]ince the transcribed record is incomplete, the applicants must file the missing portions of the record within 30 days from the date of this order, failing which the order reviving and reinstating the review application shall automatically lapse.” The Applicants were then ordered to file the missing part of the record within 30 days of the date of the order.

[27] It is evident from the wording of the order, read with the body of the judgment and considered in the context of the whole judgment, that the record the Court ordered the filing of, is the portion of the transcribed record that was incomplete or missing. Even though the documentary record forms part of the record in a review application, the judgment and the order cannot be interpreted to include the filing of the documentary record. The Court did not refer to the documentary record in the body of the judgment and did not order its filing in casu. The automatic lapsing of the reinstatement order was not linked to the filing of the documentary record.

[28] The fact that the documentary record was filed outside the 30-day period, is neither here nor there. The question is whether the incomplete or missing portion of the transcribed record was filed in time.

[29] The conduct of the legal practitioners in this matter is of grave concern, as will become evident infra.

[30] On 13 August 2020, BA directed correspondence to JRA wherein it was stated inter alia that the missing portions of the record of the arbitration proceedings before the CCMA were noted, that a copy was requested and obtained from the transcribers, that the documentary record was requested from the CCMA, but not yet obtained with and had made an undertaking to file it upon receipt thereof from the CCMA. BA advised that they were only able “to partially comply with the order of Court and have indexed the record and sent same to you.” BA indeed went further to seek an indulgence from JRA to file the documentary record upon receipt from the CCMA.

[31] The communication to the effect that BA had indexed the record and sent same to JRA should have alerted JRA that a record was indexed and sent, as per the letter of 13 August 2020. Mr Bayi submitted the email, sent to JRA on 13 August 2020, wherein the missing portion of the record was served and filed and specific reference was made to the 70 missing pages of the record that was so served.

[32] On 18 August 2020, JRA responded to the letter of 13 August 2020 and recorded that the Applicant had failed to comply with the Court order and that JRA had not received the missing portions of the record and that the review application has lapsed.

[33] The communication from JRA should have alerted BA, as far back as 18 August 2020, that it was possible that the record that was sent, was not received.

[34] In casu, the legal representatives communicated and served documents by way of email and it was an acceptable means of communication between them. There are obvious and inherent risks in serving by email, inter alia that the wrong email address is used, that the email address is outdated and no longer used, that the intended recipient does not have access to his or her email for whatever reason or simply that receipt of a served document is denied. The Rules of this Court do not make provision for service by way of email and when parties elect to serve by email and where both parties are legally represented, they must ensure that the documents so served, are indeed received by the other side.

[35] Neither of the representatives followed up on the communication they had received from the other. JRA did not make a follow up enquiry after they were informed by BA that the transcribed record was obtained, indexed and sent. JRA merely stated on 18 August 2020 that it had not received the missing portions of the record and that the review application has lapsed. BA on the other hand should have followed up with JRA as to why it was alleged that the record, sent on 13 August 2020, was not received and attempts should have been made to rectify the situation.

[36] On 29 September 2020, the Applicants served and filed the missing portions of the CCMA record of proceedings and on 9 October 2020, the Rule 7A(6), (8)(b) and (9) notices were served on JRA. On Clover’s own version the Applicants “continued with litigation of the review”.

[37] It is inexplicable why, when Clover realised as far back as October 2020 that the Applicants were proceeding with the review application, no follow up letter was written to BA to clear up the issues regarding the late or the non-filing of the record and the continuance of the pending litigation. In my view, at this point, it should have been clear to JRA that the Applicants intended to proceed with the review application and if there was any uncertainty about the serving of the missing portions of the record, it was an issue that could and should have been addressed as far back as October 2020. Unfortunately, nothing was done to resolve the issue around the record.

[38] On 9 June 2022, a notice of set down was sent to the parties, indicating that the review application was set down for hearing on the opposed motion Court roll of 4 August 2022. Once again, no immediate action was taken to resolve the issue regarding the record and to make sure that all steps necessary are taken for the matter to proceed on 4 August 2022.

[39] Only on 27 July 2022, a mere five days before the hearing of the review application, JRA filed a supplementary affidavit, raising the issues which now require this Court’s attention.

[40] The limited resources of this Court and the backlog in dealing with matters, especially opposed motions, are notorious and a well-known fact, more so to legal practitioners who litigate in this Court on a regular basis. It is known that parties have to wait in the queue for their day in Court for a period between 12 and 24 months.

[41] In Mphahlele v Ephraim Mogale Municipality[6], albeit in a different context, the Court warned practitioners that:

‘This court has a substantial backlog, both in relation to matters referred for trial and opposed motions. In both instances, parties are being expected to wait for up to 12 months for the allocation of hearing dates. Matters such as the present, which are so manifestly misguided and devoid of merit, require the same time, attention and allocation of scarce resources as those matters that disclose genuine disputes justiciable by this court. The parties in those matters are prejudiced by the referral of disputes such as the present. The court ought to mark its disapproval of those practitioners who persist with claims of the sort described above and who undermine the statutory purpose of expeditious and efficient dispute resolution. If a costs order de bonis propiis is an appropriate means of achieving that end, then so be it.’

[42] The conduct of JRA in casu is deplorable and disappointing. The review application was filed in 2016, due to circumstances the review application had to be reinstated and such an application was filed in August 2018. The reinstatement application was enrolled for hearing in June 2020, almost two years later. The Registrar was directed to enrol the review application on the opposed motion Court roll and due to the backlog, this matter was given a hearing date only in August 2022, more than two years after it was reinstated. Since October 2020, JRA did nothing to follow up on the filing of the record, did nothing to raise the issues that were raised only on 27 July 2022 and which could and should have been raised as an interlocutory issue, but instead did everything to ensure that the review application would not be able to proceed on 4 August 2022.

[43] It is evident from the time that has lapsed since the filing of this review application that the statutory mandate of expeditious and efficient dispute resolution had long been undermined and disregarded. That the conduct of legal practitioners, in addition to the systemic challenges, contributes significantly to the undermining of the statutory mandate, is unacceptable and lamentable, to say the least.

[44] The consequence of the conduct of the parties’ legal practitioners caused an inevitable and continuing delay in the finalisation of this matter, as it will once again go to the back of the queue to await another opportunity to be enrolled. I re-iterate: both parties are legally represented and they should have made an effort to sort out the record and not wait until the eleventh hour to raise issues that require attention from already scarce resources and only contributed to further delays.

[45] I can only repeat what was held in Liquid Telecommunication (Pty) Ltd v Valerie Carmichael-Brown[7]:

‘Technical point-taking has never been encouraged in this court, inimical as it is to the statutory purposes to which I have referred above. Litigating in the manner in which the excipient employer has approached this matter is to be discouraged in the strongest terms. This is particularly so in litigation between dismissed employees and their erstwhile employers, where the promotion of access to justice may be frustrated by the cost of litigation conducted in a manner other than that envisaged by the Rules. At best for the excipient, the terms of the exception evince an overly technical approach to litigation, one that is not welcome in this Court. At worst, it is an attempt consciously to frustrate the statutory purposes to which I have referred.’

[46] The approach taken in casu is not welcome in this Court, more so where the parties waited for more than two years to have the merits of the review application set down for hearing. The issues raised in the supplementary affidavit should have been addressed and resolved between the legal practitioners and they should have made every effort to ensure that the matter could be finalised. Instead, JRA waited until the eleventh hour to raise issues, which should and could have been resolved by the parties taking a practical and sensible approach, without the intervention of the Court.

[47] Almost six years after the filing of the review application, this matter has taken up space on the Court roll on more than one occasion, yet it is not one step closer to finality.

[48] As Clover did not file an application, but merely a supplementary affidavit, no actual relief was sought from this Court. Clover took the point that the Applicants’ review application had lapsed and that another revival application was necessary for this Court to have jurisdiction to hear the matter. The issue was argued as a point in limine.

[49] In an attempt to provide clarity to the parties, and absent any specific relief sought, this Court is satisfied that the Applicants complied with the Court order of 23 July 2020 in that the transcribed record was sent via email to JRA on 13 August 2020. I already expressed this Court’s reservation on the issue of service by way of email, without any follow up to confirm that it was indeed received. Be that as it may, the legal representatives in casu elected to correspond and serve by way of email, albeit not expressly and in writing, their conduct condoned service by email. They should have made better efforts to ensure that the missing portion of the record was indeed served and received, but on the facts placed before me, I have no reason to reject BA’s version that the missing portion was sent to JRA on 13 August 2020. Whether it was received, is an entirely different question and one the parties could have and should have resolved themselves, long before 27 July 2022.

[50] It follows that the review application remains reinstated, as per the order of 23 July 2020 and that there is no need for the Applicants to file another application for the reinstatement of the review application and to burden this Court once more with such an application.

Costs

[51] The last issue to be decided is the issue of costs. This Court has a wide discretion in respect of costs, considering the requirements of law and fairness.

[52] In Zungu v Premier of KwaZulu-Natal and Others,[8] the Constitutional Court confirmed the rule that costs follow the result does not apply in labour matters. The Court should seek to strike a fair balance between unduly discouraging parties from approaching the Labour Court to have their disputes dealt with and, on the other hand allowing those parties to bring to this Court cases that should not have been brought to Court in the first place.

[53] This is a case where the Court must strike a balance, considering the requirements of law and fairness.

[54] In my view, Clover’s legal representatives ought to have advised not to file the supplementary affidavit at the eleventh hour, as it strained this Court’s limited resources and undermined the statutory purpose of expeditious and efficient dispute resolution. If Clover was serious to pursue the issues now raised, it should have filed a proper application by October 2020, to challenge the Applicants’ right to proceed with the litigation and this Court’s jurisdiction to hear the matter. In any event, as already alluded to, the issues raised in that regard are without merit.

[55] Both parties sought cost against the other de bonis propriis. In my view this is a matter where all the legal representatives should have acted more diligently, should have communicated better and should have avoided burdening this Court with issues they could have resolved between themselves.

[56] The interest of justice will be best served by making no order as to cost.

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

Order

1. The First Respondent’s point in limine is dismissed;

2. The Applicants’ review application remains reinstated;

3. The Registrar is directed to enrol the review application for hearing on notice to the parties;

4. There is no order as to cost.

Connie Prinsloo

Judge of the Labour Court of South Africa

Appearances:

For the Applicants:

M V Bayi from Bayi Attorneys

For the First Respondent: L Taylor from J R Attorneys Incorporated

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

[2] Effective, 1 April 2013.

[3] Act 66 of 1995.

[4] See: Commercial Workers Union of South Africa v Tao Ying Metal Industries and others (2008) 29 ILJ 2461 (CC), where the Constitutional Court held at para 62 that: “These disputes, by their very nature, require speedy resolution. Any delay in resolving a labour dispute could be detrimental not only to the workers who may be without a source of income pending the resolution of the dispute, but it may, in the long run, have a detrimental effect on the employer who may have to reinstate workers after a number of years.”

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

[6] (2018) 39 ILJ 879 (LC) at para 15.

[7] (2018) 39 ILJ 1779 (LC) at para 23.

[8] (2018) 39 ILJ 523 (CC) at para 24.