Maulana v Commission for Conciliation, Mediation and Arbitration and Others (JR912/19) [2023] ZALCJHB 354 (25 August 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR912/19

In the matter between:

GODFREE MAULANA

Applicant

and

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION First

Respondent

COMMISSIONER LARRY SHEAR N.O

Second Respondent

INDEPENDENT COMMUNICATION AUTHORITY

OF SOUTH AFRICA (ICASA) Third

Respondent

Heard: 30 June 2023

Delivered: 25 August 2023

JUDGMENT

TSHISEVHE AJ

Introduction

[1] Before me is an application for review in terms of Section 145 (1) (a) of the Labour Relations Act[1] (the LRA).

[2] This is an application to review and set aside the arbitration award made under case number GAJB24095-16 dated 19 March 2019 in terms of which the dismissal of the applicant was found by the Second Respondent to have been substantively unfair.

[3] Honourable Justice Van Niekerk on 21 April 2022, mero motu ordered that the Applicant file an explanatory affidavit within a period of 7 calendar days explaining why the record of arbitration

was filed on 18 February 2020.

[4] Before I deal with the merits of the application, I need to deal with the Applicant’s explanation for the late filing of the arbitration records.

Background facts

[5] The Applicant (Godfree W. Maulana), was employed by the Third Respondent as a Manager: Career and Leadership Development at the First Respondent (SABC) since 21 January 2008.

[6] The dismissal followed an investigation into allegations of gross insubordination, gross negligence and a subsequent disciplinary

hearing where he was found guilty of 6 charges which includes gross negligence and gross insubordination.

[7] Aggrieved by the dismissal, the Applicant referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) with the Second Respondent as an arbitrator, challenging both procedure and substantive fairness.

[8] The Second Respondent found that the dismissal was procedurally fair but substantively unfair and awarded the Applicant a month’s salary as compensation.

[9] The Applicant then launched a review application on 3 May 2019 challenging the decision of the Second Respondent for not ordering retrospective reinstatement.

[10] On 17 May 2019, the First Respondent filed a notice of compliance in terms of Rule 7A (3) of the Labour Court Rules[2].

[11] On or around 12 August 2019, the 60 days period for filing the arbitration record lapsed.

[12] The Applicant served and filed CCMA records on 18 February 2020, whereas it was supposed to have been filed with this court on or before 16 July 2020.

[13] On 21 April 2022, Justice Van Niekerk mero motu directed the Applicant to provide an explanatory affidavit for the late filing of the arbitration record.

[14] The Applicant was directed to file his explanatory affidavit within a period of 7 calendar days, they were due on 28 April 2020. However, the Applicant served the Third Respondent on 4 May 2020 (6 days late) and filed in this court on 10 May 2020, 12 days late.

Applicant’s explanation for the delay in filing the arbitration record

[15] The Applicant’s legal representatives, in explaining the late filing of the explanatory affidavit, stated that he thought the court order stated that it should be done within 7 court days whereas it was calendar days.

[16] He further stated that the delay was not deliberate.

[17] He stated that on 2 May 2019, they served and filed the Review Application.

[18] On 17 May 2019, the First Respondent/CCMA filed a notice of compliance in terms of Rule 7A (3) of the Labour Court Rules, but he cannot recall the date they were notified to collect the records. The First Respondent/CCMA also filed a Rule 7A (6) notice instructing the Applicant to furnish the registrar and parties with the record.

[19] That around 30 July 2019, they realised that the record was incomplete and reconstruction hearings were held on 17 September 2019 and 15 November 2019.

[20] The transcription of the reconstruction was completed on 26 November 2019.

[21] That the 60 days dies should commence to run on 27 November 2019.

[22] The record was served on the Third Respondent on 17 February 2020.

Third Respondent’s answering affidavit

[23] The Third Respondent filed its answering affidavit on 18 May 2020 stating amongst others that:

23.1 The Applicant should have asked for an extension for late filing of the records from the Third Respondent.

23.2 The Applicant should have requested for direction from the Judge President in terms of clause 11.2.4 of the Practice Manual[3].

23.3 That the Applicant is some 6 months late and same is not permissible as they did not seek an extension from the Third Respondent.

23.4 That the review is deemed to have been withdrawn.

23.5 That there is no legal authority that the 60 days dies is only triggered by the completeness of the records as the Applicant suggests.

23.6 That the Applicant does not explain the reasons for delay in filing the records after reconstruction and been concluded.

23.7 That there is no condonation application for late filing of the explanatory affidavit.

23.8 That as a result of the above, the review application should be deemed to have been withdrawn.

Analysis

[24] It is trite that a review application is urgent in nature and the Applicant in terms of Rule 7A (6) should serve and file all review records within a period of 60 days after he/she receives them from the Registrar.

[25] The Applicant was directed to file the explanatory affidavit within 7 calendar days but they since filed same on 4 May 2020, a period of 12 days late.

[26] The Applicant blames its late filing on the misreading of the court order.

[27] Ex facie the court order, it is clear that the order stated that they should file within 7 calendar days, as to where the Applicant got the court days from is unknown if not sheer ignorance.

[28] The Applicant did not file any condonation for the late failing of the explanatory affidavit.

[29] Pursuant of the above, I, therefore, give the Applicant a benefit of a doubt that it was deliberate on their part not to notice that they are to file an explanatory affidavit within a period of 7 calendar days.

[30] I am of the view that the delay of 12 days is not excessive, as a result, late filing of the explanatory affidavit is condoned.

Late filing of the record

[31] According to the explanation of the Applicant, he served and filed incomplete records within a period of 60 days and later on realised that the said record was incomplete which prompted a reconstruction.

[32] It is therefore clear that the reconstruction of the records was set down for 15 November 2019 and completed on 26 November 2019.

[33] I agree with the Applicant’s submission that the dies should be triggered upon receipt of the reconstructed record and as a result, it should commence on the 27 November 2019.

[34] I wish to state that the Applicant’s submission that the 60 days period expired on 24 February 2020 is legally flawed because in that, this court does not have a dies non and the 60 days period should expire on 24 January 2020.

[35] The Applicant served the records on the Third Respondent on 17 February 2020 and filed same with this court on 18 February 2020, a period of 23 days late which period is unexplained nor sought indulgence for.

[36] It is clear that the 60 days dies commenced on 27 November 2019.

[37] Clause 11.2.3 of this court’s practice manual states 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. 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...’

[38] I wish to state that the Applicant failed to request for an extension from the Third Respondent and/or the Judge President of this court.

[39] This Court has the discretion to condone or dismiss any late filing of records on account of an unreasonable delay in pursuing it.

[40] In the exercise of its discretion, the Court ought to consider four factors:

i.the length of the delay;

ii.the explanation for the delay;

iii.the effect of the delay on the other party and the prejudice which that party

will suffer should the claim not be dismissed; and

iv.the prospect of success.

[41] I have already indicated that the record was filed after 60 days and a period of some 23 days late and there is no condonation application before me.

[42] It is also well established that as soon as the party in default becomes aware that condonation is necessary, an application for condonation must be filed without further delay[4]. In that regard, this court (per Bhoola J) held as follows in Seatlolo and Other v Entertainment Logistics Services (A Division of Gallo Africa Ltd)[5]:

‘It is trite that an application for condonation must be brought as soon as the party becomes aware of the default...’

[43] The above principle has been emphasized by the Supreme Court of Appeal on numerous occasions (see Rennie v Kamby Farms (Pty) Ltd[6] and Napier v Tsaperas[7]).

[44] This approach has been endorsed by the Labour Appeal Court which in fact advocates bringing the application for condonation on the same day it is discovered to be necessary[8].

[45] From the reading of the Applicant’s papers, the Applicant seems to be of the view that this court has dies non during December period as he alleged that the 60 days period was set to expire on 24 January 2020.

[46] I should say that this is the second misreading or disregard of the rules of this court by the Applicant which unfortunately cannot be condoned.

[47] The Constitutional Court, in the opening paragraph of Toyota SA Motors (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others[9] held that:

‘Time periods in the context of labour disputes are generally essential to bring about timely resolution of the disputes. The dispute resolution dispensation of the old Labour Relations Act was uncertain, costly, inefficient and ineffective. The new Labour Relations Act (“LRA”) introduced a new approach to the adjudication of labour disputes. This alternative process was intended to bring about the expeditious resolution of labour disputes which, by their nature, require speedy resolution. Any delay in the resolution of labour disputes undermines the primary object of the LRA. It is detrimental not only to the workers who may be without a source of income pending the resolution of the dispute but, ultimately, also to an employer who may have to reinstate workers after many years.’

[48] I am mindful of the fact that, the Applicant was supposed to serve and file the record within a period of 60 days and thereafter, the Third Respondent after realising that record was not forthcoming was supposed to have placed them on terms.

[49] The Third Respondent did not do anything in order to speed the prosecution of the review application, however, the conduct of the Applicant is unacceptable and outweighs that of the Third Respondent by far.

[50] In order to achieve expeditious finalisation of labour litigation the starting point is that litigants must strictly comply with the time frames prescribed in the LRA, the Rules of this Court and the Practice Manual. The litigants and other functionaries have a joint responsibility to ensure timeous compliance with time frames and the expeditious resolution or finalisation of labour disputes. As dominus litis, an applicant has a primary responsibility, whereas the respondent has a secondary, but equally important, responsibility to ensure timeous compliance with time frames[10]. The joint responsibility enjoins the parties to police each other in ensuring timeous compliance.

[51] The Labour Court Practice Manual is not just any ordinary manual that litigants may choose to ignore, its objective is to improve the quality of the court’s service to the public and to promote the statutory imperative of expeditious dispute resolution.

[52] The scheme of the LRA is that, if it creates a right, it also creates processes or procedures for the enforcement of that right, a dispute resolution procedure for disputes about the infringement of that right, specifies the form in which that right must be enforced and specifies the remedies available for a breach of that right. The Rules of the CCMA or bargaining councils, the Rules of this Court and the Practice Manual navigate litigation that may arise within the realm of labour relations and disputes.

[53] In Bezuidenhout v Johnston NO and Others, the Court held that:

‘…If applicant parties have unduly delayed in prosecuting their applications, and fail to provide acceptable reasons for the delays,

the ultimate penalty of dismissing such applications should be used in appropriate cases. This will hopefully help in creating a culture of compliance and ensure that disputes are expeditiously dealt with.

At the same time, the respondent party must not sit by idly and bide his time, waiting for a particular undefined moment in time when the applicant party's delay may enable him to apply to have the delaying party barred from seeking further relief or to have the matter dismissed, by reason of delays in pursuing it.

I am of the view that, if an applicant drags his feet, the respondent party also bears a responsibility to ensure that disputes are resolved expeditiously. This obligation of a respondent party is, in my mind a primary one in respect of ensuring that the applicant party complies with time periods applicable to it.’

[54] Even if I were to consider the merits of the case, I am not persuaded that the Applicant has any prospect of success in the main application considering the strict test for setting aside an award on review as set out in the case of Sidumo and Another v Rustenburg Platinum Mines Ltd and Others[11].

[55] The Applicant was found guilty of 6 charges of gross misconduct which include gross insubordination and gross negligence.

[56] The Second Respondent in deciding against ordering reinstatement, at paragraph 71 of his award, he found that “the relationship between himself/Applicant and the respondent has deteriorated to a point where reinstatement would not be practicable”. It will therefore be very difficult for any judge to interfere with his decision.

[57] I should say that it is strange that the Second Respondent after finding the Applicant guilty of 5 charges of gross misconduct still found dismissal to be substantively unfair and awarded a month salary as a compensation.

[58] The Applicant was lucky to get a month’s salary as a compensation after being found guilty of all those serious charges.

[59] The Third Respondent, on the other hand, pray that the review application be dismissed as it is now deemed to have been withdrawn.

[60] In the case of Member of the Executive Council, Department of Sport, Recreation, Arts And Culture, Eastern Cape v General Public Service Sectoral Bargaining Council and Others[12], the court held that:

‘[24] An application to dismiss a review application is a drastic remedy and should not be granted unless the dilatory party has been placed on terms, and when appropriate, after any further steps as may have been available to the aggrieved party to bring the matter to finality, have been taken. This means that the conduct of the aggrieved party is to be considered.’

[61] I should say that the non-compliance with the rules or court order (late filing of explanatory affidavit) by the Applicant is for the second time after he filed the reconstructed record late without any request for extension or condonation for that matter.

[62] However, despite the fact that the First Respondent shoulders some blame for the missing records, it seems to me that the Applicant had no desire or lost interest in the matter hence he delayed bringing the review application to finality in total disregard of the rules of this court and as a result his conduct is unacceptable.

[63] In Pick 'n Pay Supermarkets, Northern Transvaal (A Division of Pick 'n Pay Retailers (Pty) Ltd) v Commission for Conciliation, Mediation and Arbitration and others[13] the Court held that:

‘It follows therefore on the undisputed facts before this court that there was a late referral. It is now settled law that unless there was condonation granted, any dispute referred out of time is invalid and renders subsequent proceedings invalid.’[14]

[64] In South African Municipal Workers Union obo Mlalandle v South African Local Government Bargaining Council and Others (SAMWU)[15] the Court held that:

‘5.4. To the extent that the defaulting party may contend that it would suffer prejudice on account of any application of clause 11.2.3 of the Practice Manual, or that it would be deprived of its right to access to Court and to have its application fully ventilated, the proper order is to strike the review application from the roll. Once a matter has been struck off the roll, nothing prevents a party from filing an application to have the review application reinstated, together with an application in which condonation for the late filing of the record is sought.’

[65] And, at paragraph 6:

‘Where no extension is consented to, it therefore follows that the application remains withdrawn until such time that the applicant has filed the necessary papers as contemplated in the manual, to seek an extension from the Judge President, which essentially entails seeking an indulgence.’[16]

[66] In the SAMWU case supra, the Court stated that:

‘In the absence of an application to reinstate the review application, or further in the absence of an application for condonation as inferred from the provisions for such non-compliance, the Court cannot exercise its discretion in a vacuum. To therefore request the Court to exercise its discretion, and to ignore the fact that no formal request or application have been made is indeed a big ask, which the Court cannot accede to. To do so would make a mockery of practices in this Court which are meant to ensure its smooth and efficient running. It is not for this Court to willy-nilly grant extensions or indulgences where no formal applications have been made in that regard.’[17]

[67] When the Applicant filed the record outside the 60 days period without any consent from the respondent or court order, leaves this court with no jurisdiction to entertain the review application.

[68] The Applicant has an option, if he so wish, to file an application for the reinstatement of a review application accompanied by a substantive application for condonation.

[69] I have had regard to the requirements of law and fairness in considering costs, and having done so, I am of the view that a cost order is not warranted in this matter.

[70] In the premise, I make the following orders:

Order

1. The application for review as brought by the Applicant is deemed to have been withdrawn by virtue of the provisions of clause 11.2.3 of the Practice Manual of this Court.

2. Review application is struck off the roll for lack of jurisdiction.

3. No order is made as to costs.

N Tshisevhe

Acting Judge of the Labour Court

Appearances

For the Applicant: Adv. M.S Sebola

Instructed by: Sebola Nchupetsang Sebola Inc.

For the Respondent: Dawn Norton

Instructed by: Practising Attorney

[1] Act 66 of 1995, as amended.

[2] GN 1665 of 14 October 1996: Rules for the conduct of proceedings in the Labour Court.

[3] Practice Manual of the Labour Court of South Africa, effective 1 April 2013.

[4] CWIU & another v Ryan & others [2001] 3 BLLR 337 (LC); [2001] JOL 7634 (LC).

[5] (2011) 32 ILJ 2206 (LC) at para 10.

[6] [1988] ZASCA 171; 1989 (2) SA 124 (A) at 129G.

[7] [1995] 2 All SA 262 (A); 1995 (2) SA 665 (A) at 671 B-D.

[8] See in this regard inter alia Allround Tooling (Pty) Ltd v NUMSA & others [1998] 8 BLLR 847 (LAC); [1998] JOL 2719 (LAC) at para 8; NEHAWU v Nyembezi [1999] JOL 4612 (LAC); [1999] 5 BLLR 463 (LAC) at 464 D-F; and Librapac CC v Fedcraw and Others [1999] ZALAC 6; [1999] 6 BLLR 540 (LAC) at 543.

[9] [2015] ZACC 557 (CC); (2016) 37 ILJ 313 (CC) at para 1.

[10] Bezuidenhout v Johnston NO and Others [2006] ZALC 78; [2006] 12 BLLR 1131 (LC) at paras 31-32; and Frans Meintjies New Tyre Manufacturers v Bargaining Council & others [2012] ZALCPE 2; [2012] 6 BLLR 558 (LC) at para 31.

[11] [2007] ZACC 22; 2008 (2) SA 24 (CC) at para 110.

[12] [2015] ZALCPE 24; [2015] 12 BLLR 1224 (LC).

[13] (2000) 21 ILJ 234 (LC).

[14] [2015] ZALCPE 24; [2015] 12 BLLR 1224 (LC) at para 43.

[15] [2017] JOL 37418 (LC); [2017] 1 BLLR 99 (LC) at para 5.

[16] [2017] JOL 37418 (LC); [2017] 1 BLLR 99 (LC) at 6.6.

[17] Ibid at para 11.