Jele v Illovo Sugar South Africa (Pty) Ltd and Others (D1373/2019) [2021] ZALCD 62 (19 August 2021)

IN THE LABOUR COURT OF SOUTH AFRICA,DURBAN

Not Reportable

CASE NO.: D1373/2019

In the matter between:

NHLANHLA CONSUL JELE APPLICANT

And

ILLOVO SUGAR SOUTH AFRICA (PTY) LTD 1ST RESPONDENT

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION 2ND RESPONDENT

COMMISSIONER ADVOCATE CJ MONKS NO 3RD RESPONDENT

Heard: 01 July 2021

Delivered: 19 August 2021

JUDGMENT

Maeso AJ

1. Two applications came before the court:

1.1 application to dismiss review application in terms of Rule 11(4). The applicant launched his review application in November 2019.

2. By the 3rd December 2019, the CCMA had served its notice in terms of Rule 7A(3) of the Labour Court Rules confirming that the record of proceedings was available for upliftment.

3. This notice was electronically served on the parties' respective attorneys.

4. In accordance with the Section 11.2.2 of the Practice Manual of the Labour Court of South Africa, the applicant was required to serve and file the record of proceedings by no later than the 3rd March 2020.

5. If the applicant was unable to do so, he was duty bound to seek agreement from the respondent's attorney on an extension of time and failing that agreement to make application to the Judge President for an extension of time.

6. The failure to comply with Section 11.2.2 of the Practice Manual of the Labour Court of South Africa means that the review application is deemed to be withdrawn.

7. On the 13th December 2019, the applicants filed can be described as a request for an extension of time within which to file the record on the first respondent's attorneys and filed same with the Labour Court.

8. The first respondent's attorneys did not agree to the request and instead asked questions of clarity that were not answered.

9. As a result, no extension of time to file the record was agreed with the first respondent and the applicant did not follow up with an application to the Judge President for an extension. As a result, the Practice Manual requires this court to treat the review application as if it was withdrawn.

10. It is now trite that the underlying objective of the Practice Manual is to promote expeditious dispute resolution. It gives effect to the rules of the Labour Court and the provisions of the Labour Relations Act. It is also binding on the parties. However, this court does have a residual discretion when applying and interpreting the provisions of the Practice Manual depending on the facts and the circumstances of the case before the court.[1]

11. In this matter the first respondent raised a preliminary point in its opposing affidavit to the review application that the applicant had not complied with paragraph 11.2 of the Practice Manual and that as such the review is deemed to be withdrawn.

12. Notwithstanding this, the applicant filed his replying affidavit in which he indicated that the first respondent's attorneys had been advised that it would "take some time for the transcribed record to be ready" and that it had always been his view that "this matter should be dealt with as quick as possible". The applicant went to allege that at no stage did he contemplate withdrawing the review application.

13. Unfortunately, this does not help the applicant as this explanation, albeit very brief, is contained in the same application that is deemed to have been withdrawn.

14. This court cannot consider the allegations contained in the review application until such time as an application to resuscitate the review is successfully made to this court together with an application for condonation explaining the failure to comply with the required time limits. Only then is the review application properly before the court.

15. It was common cause that the applicant had not made an application to resuscitate the review.

16. This issue was raised in the first respondent's heads of argument with the reference to Macsteel Trading Waybill v Van der Merwe No and Others[2] with specific reference to paragraph 25[3] :-

"as indicated, the review application was archived and regarded as lapsed as a result of NUMSA's failure to comply with the Practice Manual. There was also no substantive application for reinstatement of the

review application and no condonation sought for the undue delay in filing the record".

17. Mr Lawrence, appearing for the first respondent urged the court to consider the obiter remarks made in the Macsteel judgment, and

suggested that the correct approach when making application to dismiss a review application when it has been archived, is to bring

an application in accordance with Rule 11.

18. This is what the first respondent did, and the application required the court to dismiss the applicant's review application.

19. However, in the absence of an order reinstating the review application and having the delay in complying with the rules of this court condoned, there is simply no review application that serves before this court. For that reason and for the purpose of Rule 11 application, there is nothing before the court to dismiss.

20. For these reasons and in accordance with the Eskom Holdings SOC Limited. [4] The appropriate order is a declarator to the effect that the review application is deemed to have been withdrawn.

21. The following order is made:-

21.1 in terms of Clause 11.2.3 of the Practice Manual, the application for review is deemed to have been withdrawn.

21.2 there is no order as to costs.

MG MAESO

Acting Judge of the Labour Court of South Africa

[1] Samuels v Old Mutual Bank [2017] 38 ILJ 1790 (LAC) at para 14 and 15

[2] [201] 40 ILJ 798 (LAC),

[3] Supra, page 805

[4] Eskom Holdings SOC Limited v Kgaile [2021] JLL 49826 (LC)