Mathebula v National Health Laboratory In Re National Health Laboratory v Mathebula and Others (JR74/19) [2021] ZALCJHB 256 (30 August 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR74/19

In the matter between:

GEZANI JOHN MATHEBULA Applicant

and

NATIONAL HEALTH LABORATORY Respondent

RE:

NATIONAL HEALTH LABORATORY Applicant

GEZANI JOHN MATHEBULA First

Respondent

COMMISSION FOR CONCILIATION

MEDIATION AND ARBITRATION Second

Respondent

COMMISSIONER RJ MATETA Third

Respondent

Enrolled: 29 July 2021 (decided on paper)

Delivered: In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation

to the parties' representatives by email. The date for hand-down is deemed to be 30 August 2021.

Summary: Court lacks jurisdiction to entertain a matter deemed to have been withdrawn – matter stands to be struck off the roll.

JUDGMENT

NKUTHA – NKONTWANA, J

Introduction

[1] This is an interlocutory application in terms of Rule 11 of the Labour Court Rules (Rules). The applicant, the first respondent in the review application, seeks an order dismissing the review application launched by the respondent, the applicant in the review application, on various grounds, including the late filing of the record. The applicant has not filed his answering affidavit in the review application.

Background

[2] The applicant was dismissed on 16 May 2018 for desertion consequent to his arrest and detention; a dismissal he challenged successfully, hence the award impugned in the review application.

[3] On 30 January 2019, the first respondent filed the review application. On 14 March 2019, the respondent was served with the Notice of Compliance in terms of Rule 7A(5) of the Rules from the Registrar of this Court dispatching the record of the arbitration proceedings.

[4] The respondent concedes that the record of the arbitration proceedings was filed on outside the requisite of 60-day period stipulated in clause 11.2.2 of the Practice Manual of the Labour Court[1] (Practice Manual). The explanation proffered is that the record was incomplete and the parties had to attend to its reconstruction. While the applicant conceded that the record was incomplete, he, however, contends that, since there was no extension of the 60-day period sought in order to keep the review application live, it is deemed to have been withdrawn in terms of clause 11.2.3 of the Practice Manual.

[5] Clause 11 of the Practice Manual provides as follows:

‘11.2.2 For the purposes of Rule 7A(6), 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.

11.2.3 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. If consent is refused, the applicant may, on notice of motion supported by affidavit, apply to the Judge President in chambers for an extension of time.

…

11.2.7 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 Argument) 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 be archived or be removed from the archive.’ (Emphasis added)

[6] In Macsteel Trading Wadeville v Francois van der Merwe N.O and Others,[2] the Labour Appeal Court (LAC) had the following to say on the consequences of non-compliance with Clause 11.2.7 on the jurisdiction

of the Labour Court:

‘The Labour Court did not adopt this approach. It instead declined to deal with the issue of the undue delay and proceeded to determine the merits of the review application, which had already lapsed for non-compliance with clause 11.2.7 of the Practice Manual. The Labour Court determined the “lapsed application” in the absence of a substantive reinstatement application and an order reinstating the review application. Put simply; the Labour Court determined the review application when it had no jurisdiction to do. This constitutes a basis for interference on appeal. The appeal must accordingly be upheld, and the order of the Labour Court set aside and replaced with an order striking the matter from the roll.’

[7] In RecentlySG Bulk, A Division of Supergroup Africa (Pty) Ltd V Simon Thanduyise Khumalo and Another,[3] confronted with a similar application, Moshoana J aptly expounded the effect of the above LAC authority as follows:

‘…In the main, the LAC concluded that the Labour Court determined a review application when it had no jurisdiction to do so. The LAC emphasized that determining a lapsed application in the absence of a substantive reinstatement application and an order reinstating the review application. To my mind there is no significant difference between a lapsed review and a deemed withdrawn review. Both are as good as being struck off. Clause 11.2.7 states that the application will be archived and be regarded as lapsed. Clause 16.3 provides that the consequences of an archived file is that of the matter having been dismissed. In my view the wording of the clause is unfortunate,

it must appropriately read “struck off” as opposed to dismissed. A Court is not entitled to dismiss a matter if the merits thereof has not been considered. Nonetheless, I do not understand Macsteel to be stating that in a lapsed review, the Labour Court still retains jurisdiction. Instead I understand the LAC to be saying once reinstated, a party may still have an opportunity to bring a rule 11 application to have the reinstated review application dismissed on the basis of undue delay. Until an order is issued reinstating a withdrawn or lapsed review, the Labour Court lacks jurisdiction to entertain a rule 11 application.’ (Emphasis added)

[8] I subscribe to the views alluded to in the above authority. Turning to the matter at hand, since the record of the proceedings under review was filed late, the review application is deemed to have been withdrawn. It follows that there is no live matter between the parties that this Court can entertain, including the Rule 11. Simply put, since the matter is deemed withdrawn, there is no review application to be entertained. The respondent’s submission that this court should reinstate the review application is untenable absent a formal application.

Conclusion

[9] It follows that the review application deem withdrawn and stands to be struck off the roll.

Costs

[10] This court has a discretion in terms of section 162 of the LRA to order costs in accordance with the requirements of the law and fairness. There is no reason why the respondent should not pay the applicant’s costs because it was formally notified about the state of the review application but failed to formally seek its reinstatement.

[11] In the premises, I make the following order:

Order

1. The review application is deemed withdrawn and thus struck off the roll.

2. The respondent shall pay the applicants costs.

P Nkutha-Nkontwana

Judge of the Labour Court of South Africa

[1] The Practice Manual came into effect on April 2013.

[2] [2018] ZALAC 50; (2019) 40 ILJ 798 (LAC)

[3] Yet to be reported judgement of this Court per Moshoana J, delivered on 13 April 2021 under JS393/19 & JR537/13.