Ingquza Hill Local Municipality v South African Local Government Bargaining Council and Others (PR108/14) [2015] ZALCPE 62 (6 October 2015)
The court held that once a preliminary point of lis pendens is raised, it must be determined before any application to dismiss the review application can be entertained. The third respondent had a duty to ensure that the preliminary point was set down and decided prior to enrolling the application to dismiss....
Source-derived case information.
- Citation
- [2015] ZALCPE 62
- Parties
- Applicant: Ingquza Hill Local Municipality; Respondent: South African Local Government Bargaining Council; Respondent: Vuyani Nosindwa N.O.; Respondent: IMATU obo Madikane, Mangcotywa, Rhini and Qumba
- Court
- Labour Court Port Elizabeth
- Jurisdiction
- South Africa
- Case Number
- PR108/14
- Procedural Posture
- Review Application / Application to Dismiss Review Application Before Determination of Preliminary Point
- Outcome
- Application to dismiss the review application is struck off the roll; no order as to costs.
- Judges
- Lallie
- Legal Topics
- Lis Pendens, Unfair Dismissal, Review of Arbitration Award, Striking Off the Roll
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ingquza Hill Local Municipality
Applicant
South African Local Government Bargaining Council
Respondent
Vuyani Nosindwa N.O.
Respondent
IMATU obo Madikane, Mangcotywa, Rhini and Qumba
Respondent
Procedural Posture
Review Application / Application to Dismiss Review Application Before Determination of Preliminary Point
Legal Issues
- 1 Whether the application to dismiss the review application can be entertained before the preliminary point of lis pendens is determined.
- 2 Whether the third respondent is entitled to apply for dismissal of the review application while the lis pendens point is pending.
- 3 Whether a costs order should be made against the third respondent.
Ratio Decidendi
The court held that once a preliminary point of lis pendens is raised, it must be determined before any application to dismiss the review application can be entertained. The third respondent had a duty to ensure that the preliminary point was set down and decided prior to enrolling the application to dismiss. Entertaining the dismissal application at this stage would be premature and would deprive the court of the opportunity to resolve the lis pendens issue, which could be dispositive. The court further found that dismissing the application to dismiss was not appropriate, as the third respondent should not be denied the opportunity to apply for dismissal at the correct procedural...
Court Disposition
Application to dismiss the review application is struck off the roll; no order as to costs.
Orders
- The application to dismiss the review application under case number PR 108/14 is struck off the roll.
- No order is made as to costs.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF SOUTH AFRICA
IN THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not Reportable
Case no: PR 108/14
In the matter between
INGQUZA HILL LOCAL MUNICIPALITY
Applicant
and
SOUTH AFRICAN LOCAL GOVERNMENT
BARBAINING COUNCIL
First Respondent
VUYANI NOSINDWA N.O
Second Respondent
IMATU obo MADIKANE, MANGCOTYWA
RHINI and QUMBA
Third Respondent
Heard: 6 October 2015
Delivered: 30 October 2015
Summary: Having raised a point in limine of lis alibi pendens, the applicant could not launch an application for the dismissal of the review application before the determination of the point in limine.
LALLIE, J
[1] This is an application to dismiss the applicant’s review application. The individual third respondents were employed by the applicant. They were dismissed for misconduct in 2009 and challenged the fairness of their dismissals by referring separate unfair dismissal disputes to the first respondent. The second respondent arbitrated their disputes and in April 2010, issued arbitration
awards in which he found their dismissals unfair and ordered the applicant to reinstate them. The applicant filed separate review
applications to have each arbitration award reviewed and set aside. The review applications were archived in November 2010 owing to the applicant’s failure to prosecute them. The third respondent had the awards certified in terms of section 134 of the Labour Relations Act 65 of 1996 as amended (the LRA) in order to enforce them. On 22 May 2014, the applicant filed the present review application seeking an order reviewing and setting aside all for arbitration awards in one application.
[2] The third respondent opposed the review application and raised a preliminary point of lis alibi pendens (lis pendens) on the basis that it was impermissible for the applicant to launch the present review application while the review applications it filed in 2010 were still pending. In addition, the third respondent filed an application for the dismissal of the review application on the basis that it was filed in order to delay the implementation of the arbitration awards issued in favour of the individual third respondents. The applicant opposed the application for the dismissal of the review application and argued that it was not open to the third respondent to apply for the dismissal of the review application while its lis pendens preliminary point was pending.
[3] I have considered the submissions and arguments on behalf of both parties before me and am convinced that having raised a preliminary
point of lis pendens which may be dispositive of this matter, there was a duty on the third respondent to ensure that, the preliminary point was set down and determined before the application dismissing the review application was enrolled. This court has an obligation to determine the preliminary point which was raised by the third respondent. The application to dismiss the review application is premature in the circumstances and has the effect of denying this court of the opportunity to determine the preliminary point.
[4] The applicant sought the dismissal of the application to dismiss its review application with costs. I am not convinced that dismissing this application is the appropriate relief because the third respondent should not be denied of the opportunity of applying for the dismissal of the review application at the appropriate time. I am further not convinced that both the law and fairness require that a costs order be made against the third respondent. The applicant contributed substantially to the filing of this application as it has for years prevented the individual third respondents from being reinstated in terms of arbitration awards issued in 2010.
[5] In the premises, the following order is made:
5.1 The application to dismiss the review application under case number PR 108/14 is struck off the roll.
5.2 No order is made as to costs.
________________
Lallie, J
Judge of the Labour Court of South Africa
Appearances:
For the Applicant:
Advocate Matotie with Advocate Pango
Instructed by:
Ximbi Ncolo Inc Attorneys
For the Third Respondent: Mr Heuer of Minnaar Niehaus Attorneys