Magnesita v National Bargaining Council for the Chemical Industry and Others (JR 1241/18) [2021] ZALCJHB 215 (5 August 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR 1241/18

NBCCI: FSCEN87-18/18

In the matter between:

RHI MAGNESITA Applicant

and

NATIONAL BARGAINING COUNCIL FOR THE First

Respondent

CHEMICAL

INDUSTRY

COMMISSIONER SIBONGISENI SITHOLE Second

Respondent

SACWU

OBO TSHABALALA SB Third

Respondent

Heard: 22 July 2021 on paper.

Delivered: This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing-down is deemed to be at 15h00 on 05 August 2021.

JUDGMENT

BALOYI, AJ

Introduction

[1] On 08 February 2021 the third respondent approached this Court in terms of Rule 11 of the Rules of conduct of proceedings in this Court, specifically seeking the dismissal of the review application filed by the applicant on 26 June 2018. The application is unopposed. The third respondent laments the unreasonable delays on the part of the applicant in the prosecution of the review application.

Background

[2] The arbitration award sought to be reviewed was issued on 24 May 2018 and the applicant filed the review application on 26 June 2018.

[3] On 24 August 2018 the applicant filed a record of review consisting of the transcript of the record of arbitration proceedings. The contents of the transcript reveals that the parties relied on documentary bundles of evidence during the arbitration proceedings. The documentary evidence bundles do not form part of the record of review.

[4] The third respondent had despite being served with the incomplete record proceeded with the filing of the answering affidavit on 20 September 2018. From the papers filed of record nothing appears to indicate that the applicant had taken steps to ensure that the review application is prosecuted with expedience. On 08 February 2021 the third respondent resorted to filing an application to dismiss the review application which is to date not opposed.

Evaluation

[5] There is no doubt that the period of almost 23 months has elapsed since the applicant had filed an incomplete record. The applicant did not take further steps after the filing of the answering affidavit to ensure that the review application is proceeded with. To date there is no explanation as to why the review application has not been proceeded with. Even after the filing of the Rule 11 application the applicant has not taken any step to rescue the review application[1].

[6] In view of the above, the third respondent as a party who is awarded relief in terms of the award, is no doubt prejudiced by these delays. The Court should not hesitate to intervene when called upon to do so. The only intervention available in this regard is to consider the relief sought by the third respondent. With all material placed before this Court there is no any other order to make than dismissing the review application.

[7] In the circumstances, the following order is therefore made:

Order

1. The review application is dismissed.

M Baloyi

Acting Judge of the Labour Court of South Africa

[1] Section 11.2.7 provides that: 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.