Maloisane v Judge President of the Labour Court and Others (J 2024/19) [2022] ZALCJHB 219 (11 August 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: J 2024/19

In the matter between:

MARIE MALOISANE

Applicant

And

JUDGE PRESIDENT OF THE LABOUR COURT

First Respondent

REGISTRAR OF THE LABOUR COURT

Second Respondent

FOURIE`S POULTRY FARM (PTY)

t/a CHUBBY CHICK

Third Respondent

Heard: 1 July 2022

Delivered: 11 August 2022

(This judgment was handed down electronically by circulation to the parties' legal representatives by email, publication on the Labour Court’s website and released to SAFLII. The date for hand-down is deemed to be 11 August 2022)

Summary: Clauses 11.2.2 and 11.2.3 of Practice Manuel are not inconsistent with the Constitution, Rule 11 application – relief sought is a regurgitation of the Practice Manual.

JUDGMENT

MAMABOLO, AJ

Introduction

[1] In this judgement, I deal with four different applications which have been consolidated. The first judgment deals with case no: J 2024/19 which is a declarator, the second case is an application in terms of rule 11 of the Rules for the conduct of proceedings in the Labour Court[1] (Rules) brought under case no: J 1108/19, the third is another rule 11 application under case no: J 709/20 and the fourth, is a review application brought under case no: JR 1842/19. I will deal with the applications in the above sequence.

J 2024/19 Declarator

[2] This is an application for a declarator brought in terms of section 158(1) (iv) of the Labour Relations Act[2] (LRA). The Applicant seeks an order amongst others, declaring the provisions of clauses 11.2.2 and 11.2.3 of the Practice Manual[3] to be unconstitutional. the Third Respondent opposes the application.

[3] In its opposing affidavit, the Third Respondent raised two points in limine. The first deals with a plea of lis pendens. The Third Respondent stated in its answering affidavit that the Applicant filed an urgent application wherein she seeks amongst others a declarator that the above clauses of the Practice Manual are unconstitutional. The application was dismissed for lack of urgency. However, the Applicant filed an application for leave to appeal. According to the affidavit, the application was pending before the Court.

[4] I engaged the parties on the above and finally, I was advised that the application for leave to appeal was refused. Parties were thus content to argue the current application.

[5] The second point in limine was about the locus standi of the Applicant’s representative. The Applicant is cited in her personal capacity however, the founding affidavit has been signed by a trade union representative.

[6] In response, the union relied on the provisions of section 200 of the LRA. The union argues that the Applicant is their member and as such, it is entitled to represent her. The Third Respondent did not dispute the Applicant’s affiliation to the union.

[7] Section 200 of the LRA makes provision for a trade union to act on behalf of its members in any dispute to which they are a party.

[8] As a member of the union, she is entitled to their representation. The union is as well entitled, in terms of section 200 of the LRA, to bring an application on behalf of its members and in its own right.

[9] As a matter of fact, I noted from the notice of motion that the Applicant is cited as Marie Maloisane, who is an individual member of the union. The notice of motion makes it very clear that an affidavit of Josiah Mogase will be used in support of the application.

[10] A perusal of the founding affidavit reveals that the application has been brought by GIWUSA on behalf of its member, Maria Maloisane. The founding affidavit has been deposed to by Josiah Mogase in his capacity as a union representative. The fact that the citation of the Applicant on both the notice of motion and founding affidavit differs is immaterial and does not take the matter any further. The union is thus fully entitled to act on behalf of its member in this application.

[11] To support its case, the union argued that the provisions of clauses 11.2.2. and 11.2.3 of the Practice Manual “militates against the provisions of rule 7A (4)”. The union argued that the Practice Manual does not replace the Rules. Instead of filing an application to dismiss the review application in terms of rule 11, so goes the argument, the Third Respondent must approach the court for an order in terms of rule 7A (4).

[12] The union further argued that the clauses referred to above have the effect of a ‟sudden death which is not fair and flies in the face of section 23(1) and 33(1) of the Constitution”. The Third Respondent opposes the application and argues that no basis in law has been made out for the relief claimed.

[13] As a starting point, section 34 of the Constitution of the Republic of South Africa, 1996, (Constitution) provides for the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court[4]. The Labour Court was accordingly established as a court of law and equity to entertain such disputes that fall within the area of its jurisdiction[5].

[14] For the Court to ensure that disputes are dealt with in a fair manner, the Court had to establish a body that would formulate its rules of conduct. Section 159 of the LRA established the Rules Board of the Labour Court. This body is given power by section 159(3) to make rules that regulate the conduct of proceedings in the Labour Court.

[15] In exercising the above power, the Rules and the Practice Manual were formulated. The objectives thereof were, amongst others, to regulate the process by which proceedings are brought before the court.

[16] Clause 11.2.2 of the Practice Manual provides that “records must be filed within 60 days of the date on which the applicant is advised by the registrar that the record has been received”.

[17] Clause 11.2.3 provides that “if the applicant fails to file a record within the prescribed period, the applicant will be deemed to have withdrawn the application,

unless the applicant has during that period requested the respondent’s consent for an extension of time and consent has been given…”

[18] The Court is called upon to make a declaration that the above provisions of the Practice Manual are inconsistent with the provisions of the Constitution.

[19] Section 172 of the Constitution provides for the powers of courts in constitutional matters. Section 172(1)(a) provides that a court must

declare that any law or conduct that is inconsistent with the Constitution invalid to the extent of its inconsistency[6].

[20] A perusal of the impugned clauses reveals that the main objective is to set time frames within which certain actions must be performed. The Rules, and in particular rule 7A (6) is silent on the period within which a record must be filed. The rule only places an obligation on the Applicant to furnish the registrar and the parties with a record.

[21] To close the gap, and in order to achieve and promote the objective of the LRA i.e. expeditious resolution of disputes, a Practice Manual was promulgated and, the period within which a record must be filed is clearly stipulated. In prescribing this period, the Rules Board was guided by the provisions of the Rules.

[22] The wording of the above clauses is similar to rules 5(8) and 5(17) of the Rules of Conduct in the Labour Appeal Court[7]. Rule 5(8) provides that “[t]he record must be delivered within 60 days of the date of the order granting leave to appeal…” And rule 5(17) provides that –

‘If the appellant fails to lodge the record within the prescribed period, the appellant will be deemed to have withdrawn the appeal, unless the appellant has within that period applied to the respondent or the respondent’s representative for consent to an extension of time and consent has been given. If consent is refused the appellant may, after delivery to the respondent of the notice of motion supported by affidavit, apply to the Judge President in chambers for an extension of time…’

[23] In order to succeed with his claim, the Applicant will have to demonstrate that the Practice Manual is inconsistent with the Constitution. The Applicant’s argument is basically that the deeming provision in clause 11.2.3 of the Practice Manual militates against rule 7A(4). He argues that the deeming provision has the effect of a ‟sudden death”. I do not agree with the argument as will appear hereunder.

[24] Rule 7A (4) provides that “if the person or body fails to comply with the direction or fails to apply for an extension of time to do so, any interested party may apply, on notice, for an order compelling compliance with the direction.”

[25] According to the Applicant, the deeming provision should not be applied at all. Instead, so goes the argument, if there is non-compliance with the time period, i.e. if the CCMA or bargaining council fails to dispatch a record within the stipulated period, resort must be had to the provisions of rule 7A (4). The Applicant is basically saying that either of the parties must bring an application to compel the CCMA or bargaining council to dispatch the record.

[26] It is indeed correct to argue that either of the parties has a duty to bring an application to compel. However, an applicant in the review proceedings has a greater duty to bring such an application as he/she is dominus litis. Furthermore, an applicant in the review proceedings must ensure compliance with the stipulated time periods.

[27] Furthermore, filing of an application to compel a dispatch of the record will not in any way impact on the 60-day period stipulated in clause 11.2.2 of the Practice Manual. This is so because, in the event that such an application to compel is filed, the applicant in the review application is still required to observe compliance with the 60-day period.

[28] I must mention that clause 11.2.3 of the Practice Manual is accommodative for a situation where it is impractical or not possible for the record to be filed within the required 60-day period. It makes provision for a request for an extension of time. In terms of the clause, the applicant can approach the respondent with a request to consent to the extension of time and, if the consent is denied, an applicant can bring an application for extension before the Judge President.

[29] The process envisaged in rule 7A (4) can run concurrently with the request for an extension of time. The fact that the CCMA or bargaining council had not discharged its function and that an application to compel a dispatch of the record is pending would, in my view, weigh heavily in favour of granting an extension.

[30] Accordingly, the argument that the deeming provision has the effect of a “sudden death” is misguided.

[31] A further point that was raised by the Applicant is that clause 11.2.3 flies in the face of section 23(1) of the Constitution. Applicant argued that the effect of clause 11.2.3 i.e. ‟sudden death”, does not constitute a fair labour practice.

[32] Section 23(1) of the Constitution of the Republic provides that “everyone has the right to fair labour practices.”

[33] Again, this line of argument is misguided. The definition of unfair labour practice can be found in section 186(2) of the LRA and it includes, an unfair act or omission that arises between an employer and an employee. Accordingly, an act of unfair labour practice can only be perpetrated by an employer against an employee.

[34] The challenge before the Court concerns the constitutionality of the Practice Manual. There is no employee–employer relationship between Applicant and the Court. Accordingly, this argument has no merit at all.

[35] Lastly, the Applicant argued that clause 11.2.3 flies in the face of section 33(1) of the Constitution. Section 33(1) of the Constitution provides that “[e]veryone has the right to administrative action that is lawful, reasonable and procedurally fair.”

[36] The above argument was not substantiated save to mention that the Applicant relied on the so-called ‟sudden death” argument. In the absence of any substantiation, I find that there is no basis to declare the clause unconstitutional.

[37] In conclusion, I find that Applicant failed to prove any inconsistencies with the Constitution.

[38] Accordingly, the application for a declarator is dismissed.

J 1108/19 Rule 11 application

[39] This now brings me to the application in terms of rule 11 that is filed under case no: JR1108/ 19. The purpose of the application is to dismiss the review application that was filed in May 2019. The Applicant, Fourie Poultry Farm (Pty) Ltd t/a Chubby Chick, further seeks in the alternate, a declarator that the application is archived and deemed to be dismissed.

[40] The application to dismiss the review application is unopposed. A copy thereof was served on the Respondent, the union, on 8 October 2020 and by email on the same day.

[41] A notice in terms of rule 7A (6) was filed on 23 July 2019. On 26 July 2019, the Applicant filed its answering affidavit in the review application. A replying affidavit was consequently filed on 5 August 2019.

[42] On 2 September 2019, the Respondent filed a paginated bundle of documents.

[43] It is clear from the record that all necessary papers were filed within a period of 12 months as is required by clause 11.2.7 of the Practice Manual.

[44] Clause 11.2.7 further provides that the Registrar should be informed in writing that the application is ready for allocation of a date. This should be done within 12 months of the launch of the application. In the event that the time limit is not observed, the application will be archived and be regarded as lapsed unless good cause is shown by the applicant.

[45] It is apparent from the papers that the Registrar was never informed in writing that the application is ready for allocation of a date.

[46] Correspondence was sent to the Respondent on 19 September 2019 and on 28 January 2020, placing the Respondent on terms and further recording an intention to file an application to dismiss the review application. Notwithstanding these correspondence, the Respondent failed to inform the Registrar in writing that the application was ready for allocation of a date for argument. There was no response from the Respondent.

[47] I must pause here to mention that the Respondent does not oppose the application to dismiss the review application. No attempts whatsoever were made by the Respondent to oppose the rule 11 application and neither was an application to reinstate the review application filed. To put it bluntly, the Respondent took no corrective action at all.

[48] For purposes of this application, the applicable clauses of the Practice Manual are 11.2.7, 16.1 and 16.3.

[49] Clause 11.2.7 of the Practice Manual provides that where a time limit is not complied with, the application will be archived and be regarded as lapsed.

[50] Clause 16.1 of the Practice Manual sets out instances in which the Registrar will archive a file. One of them is when six months have lapsed without any steps taken by the applicant since the filing of the last step.

[51] Clause 16.3 provides that ‟where a file has been placed in archives, it shall have the same consequences as to further conduct by any respondent party as to the matter been dismissed.”

[52] The Applicant is very much aware of the consequences that follow a failure to prosecute the review application. Those have been set out in paragraphs 8.2 and 8.3 of the application.

[53] The Labour Court in the matter of Alexander Stanley Macaskill v State Information Technology[8] had the following to say –

‘Inasmuch as I accept that a declaratory relief is discretionary in nature, it was, in my respectful view, not necessary to make an order which reverberates what the legal position is in terms of the Practice Manual.’

[54] Accordingly, a declaration that the applicant is seeking i.e. that the file is archived and deemed to have been dismissed, from the Court is in essence a confirmation of what the Practice Manual provides for.

[55] The court in Proxi Smart Services (Pty) Ltd v The Law Society of SA,[9] held that a court will not grant a declaratory order where the issue raised before it is hypothetical, abstract and academic, or where the legal position is clearly defined by statute.

[56] This Court has held in many cases that the Practice Manual has a binding force. Thus the legal position has been clearly spelt out. Accordingly, by granting a declaratory order, the Court will be simply confirming what the legal position is.

[57] The provisions of the Practice Manual have taken effect. As a result, a declaratory order is not competent.

[58] In addition to the above, an application to dismiss the review application is incompetent. The file has been archived and there is no application for it to be reinstated. As stated above, a file that has been archived has the same status as a matter that has been dismissed.

[59] Consequently, the Court cannot dismiss a matter that has already been dismissed.

J 709/20 Rule 11 application

[60] The third application is another application in terms of rule 11. This application is brought under case no: JR 709/20, just like the application above, it is unopposed.

[61] The Applicant, Fourie Poultry Farm (Pty) Ltd t/a Chubby Chick, seeks an order dismissing the Respondent`s (GIWUSA) application to review and set aside the arbitration award. In the alternative, the Applicant seeks an order declaring that the Respondent`s review application had lapsed/ is deemed to have been withdrawn and/or archived.

[62] A review application was served on 30 April 2020. On 24 June 2020, the Applicant filed a notice to oppose. A record of the arbitration proceeding was dispatched to the Registrar of the Labour Court and parties were notified accordingly on 24 June 2020.

[63] The Applicant sent a letter to the Respondent on 5 October 2020 putting them on terms and further advising that a failure to prosecute the review will result in an application in terms of rule 11 being filed.

[64] The Respondent failed to respond to the correspondence and the record was not filed.

[65] Clause 11.2.2 of the Practice Manual provides that a record must be filed within 60 days of the date on which the applicant is advised by the Registrar that the record has been received.

[66] It is common cause that despite notification by the Registrar on 24 June 2020 that the record was available and must be uplifted, the Respondent failed to do so. The Respondent was put to terms on 5 October 2020 and still failed to observe compliance with the provisions of the Practice Manual.

[67] The 60 days’ period has since lapsed and to date, no record has been filed.

[68] Clause 11.2.3 of the Practice Manual provides that if an applicant fails to file a record within the prescribed period, the applicant will be deemed to have withdrawn the application.

[69] Consequently, as there has not been any compliance with Clause 11.2.2 of the Practice Manual, the Respondent`s review application is deemed to have been withdrawn. Put differently, the Respondent has withdrawn his review application and there is no live application to be entertained by the Court.

[70] It is trite that if a review application is deemed to have been withdrawn then there are no proceedings pending before the court i.e. there is no longer a lis before the court.

[71] Accordingly, if a review application is deemed to have been withdrawn and there is no application for its reinstatement and a judgment given or, an order issued in respect of that review application will be a nullity because, as mentioned above, there is no lis before the Court on which to pronounce and the Court will therefore not have authority or jurisdiction over the review.

[72] In addition to the above, the Practice Manual, in particular clause 16.1, spells out instances in which the Registrar would archive a file. One of them is in cases where a period of six months has lapsed without any steps taken by the referring party from the date of filing the application or the date of the last process. Again, it is common cause that the 6-month period has lapsed since the last step was taken in the matter.

[73] In accordance with the provisions of the above clauses, the Respondent`s application to review and set aside the award is deemed to have been withdrawn and archived. As such there is no live application before the Court, the Applicant`s application in terms of rule 11 is refused.

[74] The Applicant in paragraph 7.7 of its founding affidavit alleges that a dismissal of the review application or an order declaring that the review has lapsed, deemed to be withdrawn or archived will bring finality to the matter.

[75] As far as the dismissal of the review application is concerned, I have set out the law in the preceding paragraphs. In so far as it is argued that a declaratory order will bring finality to the matter, I do not agree with the argument. An order sought by the Applicant is a regurgitation of the provisions of the Practice Manual. Most significantly, such a declaratory order will be of no force and effect. The Practice Manual makes room for reinstatement of the application.

[76] Notwithstanding the existence of the declaratory order, the Respondent can simply file an application to reinstate his review application. Such an application if successful, will result in the matter being resurrected.

[77] I repeat that the Applicant is very much aware of the consequences that follow a failure to prosecute the review application. Those have been set out in paragraphs 7.3, 7.4 and 7.5 of the application.

[78] Accordingly, a declaration that the Applicant is seeking from the Court is in essence a confirmation of what the Practice Manual provides for.

[79] The provisions of the Practice Manual have taken effect. As a result, a declaratory order that is sought by the Applicant is not competent.

JR 1842/19 Review application

[80] The fourth application is a review filed under case no: JR 1842/19. In this application, the Applicant, the union, seeks an order reviewing and setting aside a jurisdictional ruling that was issued by commissioner Daddy Pridesworth on 24 July 2019.

[81] On 5 September 2019, the Respondent filed a notice to oppose the matter. This opposition was later withdrawn on 9 December 2019.

[82] The Respondent conveyed its consent to have the ruling reviewed in correspondence dated 11 December 2019.

[83] The Applicant referred a dispute in terms of Section 186 (2) (b) of the LRA. The section defines unfair labour practice as any unfair act or omission that arises between an employer and an employee involving the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee.

[84] Section 194 of the LRA deals with the limits on compensation that must be awarded to the litigant. In terms of Section 194 (4), compensation awarded to an employee in respect of an unfair labour practice must be just and equitable in all circumstances, but not more than the equivalent of 12 months’ remuneration.

[85] From the record, the facts establish that the Applicant was subjected to a disciplinary hearing on the following allegations ‟(1) threatening supervisor and foreman that you will go to HR because you don’t agree with the company rules, (2) threatening supervisor and informing him that you already went to your union instead of following the correct procedure”.

[86] The disciplinary process resulted in the issue of a final written warning on 12 April 2019.

[87] Subsequent to the filing an unfair labour practice dispute with the CCMA, the union was informed in writing on 17 May 2019 that the final written warning had been cancelled.

[88] The commissioner was called upon to determine whether the alleged unfair labour practice had been committed and if so, he was required to determine the appropriate relief.

[89] The fact that the final written warning had been cancelled does not detract from the fact that Applicant was subjected to a disciplinary process which resulted in the issue of a final written warning. The commissioner was required to look into this process and make a determination on whether it was fair or not.

[90] Accordingly, the commissioner`s ruling that the CCMA does not have jurisdiction is reviewed and set aside.

[91] I have considered the requirements of law and fairness and I am of the view that it would not be in the interests of justice to make a costs order.

[92] In the premises, the following order is made:

Order

1. J 2024/19: the declarator is dismissed;

2. JR 1108/19: Rule 11 application is refused;

3. JR 709/ 19: Rule 11 application is refused;

4. JR 1842/ 19: The commissioner`s ruling is reviewed and set aside and the dispute is remitted back to the CCMA for hearing de novo before a different commissioner;

5. There is no order as to costs.

Olivia Mamabolo

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

J Mogase

Instructed by:

GIWUSA

For the Respondent: H Wissing

[1] GN 1665 of 14 October 1996.

[2] No. 66 of 1995, as amended.

[3] The Practice Manual of the Labour Court (Effective 1 April 2013).

[4] Section 34 of the Constitution of the Republic of South Africa, 1996.

[5] Section 151 of the LRA.

[6] Section 172 of the Constitution of the Republic of South Africa.

[7] GN 1666 of 14 October 1996.

[8] Unreported judgment under case no: JR 267/20 delivered on 11 August 2021.

[9] [2018] 3 ALL SA 567 (GP)