Hlabiwa v CCMA and Others (JR213/05) [2014] ZALCJHB 383 (2 October 2014)

REPUBLIC OF SOUTH

AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

CASE NO JR 213/05

In the matter between:

ABRAHAM

HLABIWA

APPLICANT

and

CCMA

1ST RESPONDENT

DESMOND

LYNCH NO

2ND RESPONDENT

DANTEX

EXPLOSIVES

3RD

RESPONDENT

REASONS

FOR RULING

VAN NIEKERK J

[1] On 5 September 2014, I made a ruling in Chambers to the effect that the file in this matter could not be retrieved from the archives. These are my reasons for that ruling.

[2] On 8 February 2005, almost ten years ago, the applicant filed an application to review and set aside an arbitration award issued by the second respondent. On 13 September 2007, the applicant served a notice calling on the first respondent to file the record of the proceedings under review. (This ought to have been done in the notice of motion filed two and a half years prior to the notice.) An affidavit of service in respect of the review application was filed on 20 October 2009, four and a half years after the filing of the review application. On 24 June 2010, the applicant’s attorney filed an affidavit stating that the applicant had been waiting for a court date, when they learned that on 4 June 2010, the file had been closed ‘apparently due to lack attendance (sic).’ On 9 September 2010, the court issued a directive that the file should remain archived on account of a failure to prosecute the review application with due diligence.

[3] On 8 April 2014 the applicant filed an application to have the file removed from the archive. The applicant’s attorney desposed to an affidavit in which he states that he was instructed in 2013 in circumstances where the applicant’s previous attorney of record, who had until that point been dealing with the matter, had passed away and that he had taken over the file. In September 2013 the applicant’s new attorney received ‘some file contents’ from the Law Society, and in December 2013 made enquiries from the transcribers as to progress in transcribing the record. In March 2014 and after further correspondence with the Law Society the transcribers advised that the record could not be located. The applicant wishes in these circumstances to proceed with the application and to that end, requires the file to be retrieved from the archives.

[4] The practice manual (and prior to that, practice in this court) entitles the registrar to archive files that on the face of it, are dormant. A party may retrieve a file in terms of a direction issued by a Judge. In the present instance, I refused to permit a retrieval of the file on the following grounds:

1. The application to review the second respondent’s award was filed outside of the period prescribed by s 145. In fact, the application was filed some four months late. There is no application for condonation. In these circumstances, the court has no jurisdiction to entertain the application.

2. The applicant wishes to pursue an application that was filed almost ten years ago in circumstances where there is no record of the

proceedings under review, nor is there any account of what steps were made to file the record within a reasonable time. As I have indicated above, it took some two and a half years for the applicant to request the record, a request that ought to have been made simultaneously with the filing of the notice of motion. There is no record, and the prospects of any record being made available are slim. The applicant has not even attached a copy of the award under review to his papers.

3. The applicant’s current attorney of record, while not directly to blame for the lamentable delay in conducting this litigation, took more than six months to seek to have the file retrieved from the archives.

4. The purpose of the LRA is to promote expeditious dispute resolution. The applicant’s conduct has frustrated this purpose, to say the least.

5. While some of the blame in the present instance is to be borne by the applicant’s previous attorney, there is a point at which an individual applicant must assume personal responsibility for the conduct of a matter. That point was reached in this instance long before the applicant’s current attorney came on record.

6. The prejudice to the respondents should the file be retrieved and the matter proceed after almost a decade of dormancy would be immense.

For these reasons, I issued the directive that I did.

ANDRÉ

VAN NIEKERK

JUDGE

OF THE LABOUR COURT

2 October 2014