Mbokazi v Boxer Superstores (Pty) Ltd and Others (D313/19) [2024] ZALCD 11 (25 March 2024)

IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN

Not Reportable

Case No: D313/19

In the matter between:

ZABA MBOKAZI

Applicant

and

BOXER SUPERSTORES (PTY) LTD

First Respondent

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION

Second Respondent

SICELO MKHIZE N.O.

Third Respondent

Heard: 14 March 2024

Delivered: 25 March 2024

This judgment was handed down electronically by circulation to the parties and legal representatives by email. The date for hand-down is deemed to be 25 March 2024.

JUDGMENT

MAKHURA, J

Introduction

[1] The applicant was dismissed by the first respondent (company) on 9 June 2017, six years nine months ago. His unfair dismissal claim was dismissed by the Commission for Conciliation, Mediation and Arbitration (CCMA) on 30 December 2017. He received the CCMA arbitration award on 3 January 2018.

[2] The applicant launched an application to review and set aside the award. The review application was served on the company on 5 March 2019, more than a year after the award was issued. No condonation application accompanied this review application at the time. The record of arbitration proceedings was served on 15 November 2021 and a supplementary affidavit was filed on 25 November 2021. The supplementary affidavit was filed under cover of a notice of motion, which sought an order for an extension of the time period for the filing of the record and reinstatement of the review application.

[3] On 9 December 2022, the applicant filed an amended notice of motion together with a further supplementary affidavit. For all intents and purposes, the amended notice of motion sought the same relief – save for an order condoning the late filing of the record. The application before me is for the retrieval of the archived file and/or reinstatement of the withdrawn review application. The application is opposed by the company.

Material facts

[4] After receipt of the award on 3 January 2018, the applicant approached the offices of the Legal Aid Board (LAB) in Vryheid during January 2018 to apply for free legal representation. He was advised that the LAB offices in Durban would contact him to arrange a meeting. Subsequently, Donald Somo (Somo) of the LAB office based in Durban contacted him. The meeting was arranged for 15 February 2018. The review application was due a day earlier on 14 February 2018.

[5] At this meeting, Somo informed the applicant that they had limited time to finalise the review application. Somo informed the applicant he would send him a founding affidavit or about 19 February 2018 for him to peruse and sign. Somo did not send the affidavit and the applicant sent an email to his line manager, Gerhard Volschenk

(Volschenk) on 19 February 2018.

[6] The applicant was provided with a document titled ‘merit analysis’ which contained questions similar to those raised by Somo during the meeting of 15 February 2018. He completed the document and sent it back to Somo. It is however unclear when this process took place.

[7] On 12 April 2018, Somo sent the applicant his opinion on the prospects of successfully challenging the award. Somo advised the applicant that his prospects of success are weak and that the LAB would proceed to close the file.

[8] The applicant appealed the decision to close the file. The details regarding when he appealed the decision are not set out in the affidavit. However, on 28 June 2018, two and half months after he was informed of the LAB’s legal opinion on his matter and the decision to close the file, Volschenk wrote to the applicant that his appeal was processed and they await the outcome. This was followed by an email dated 23 July 2018 from the applicant to Volschenk asking

for an update.

[9] The next step was on 17 January 2019 when Volschenk sent the applicant an email apologising for the delay and informing him that he would follow up on the matter, referring to the appeal process. In

his affidavit, the applicant explains the period between July 2018 and January 2019 as follows:

‘I digress to state that in this period from July 2018 to January 2019 I, and specifically on a constant basis, contacted the Legal Aid Board and specifically Volschenk to ascertain what transpired with my appeal. I was advised that it was a time consuming process and that I had to be patient.’

[10] After further correspondence between the applicant and the LAB, including Somo, the founding affidavit was commissioned on 20 February 2019 and the application was served on 5 March 2019. The review application was however not served on the CCMA and was not filed with the court.

[11] The applicant then deals with the events subsequent to the service of the review application as follows:

‘I am advised by my current legal representatives that the aforesaid delay in filing the review application is not the only delay that occurred that needs to be addressed as well as that it was the only failure to comply with the Rules of this Honourable Court. I will address these further issues as well.

I was unhappy with the progress, or rather lack of progress, at the Legal Aid Board. I therefor decided to obtain advice from another attorney and arranged a consultation with Johannes Daniel Symington Jordaan … for 30 July 2020.

This actually came about in that I contacted the Labour Court in Durban personally and enquired about the date when my review application was to be enrolled. I was advised by the person that I spoke to, namely one Mr Khoza, that there was nothing on the court file other than a notice of opposition. In light thereof no date for the matter to be heard could have been allocated.’

[12] The applicant then continued to explain the events from July 2020, his decision to terminate the LAB’s mandate, the collection of his file from the LAB Vryheid office and the appointment of the new attorneys, Cox and Partners Attorneys. He was assisted by Johannes Jordaan (Jordaan). He explained that on 27 October 2020, he contacted the CCMA and was informed that the CCMA was not notified of a review application. He then forwarded the review application.

[13] It is common cause that the CCMA immediately proceeded to file the record. On 29 October 2020, the Registrar informed the parties that the record was ready for collection. The applicant collected the record the same day and requested quotation for transcription of the mechanical recordings. The applicant’s request for an extension of the 60-day period was refused by the company.

[14] The record was only finalised on 21 March 2021. The applicant met Jordaan on 14 April 2021 to discuss the matter after perusing the record. At this meeting, Jordaan showed the applicant that the record was paginated and that only exhibits “A2” and “C” were missing. These exhibits were then found, even though there are no details when they were found. A meeting was arranged between the applicant and Jordaan for the week of 14 – 18 June 2021 allegedly ‘to finalise the record or at least make sure we had all the documentation as well as to finalise this affidavit’.

[15] However, the meeting did not take place as scheduled because Jordaan was diagnosed with Covid-19. On 21 July 2021, Jordaan informed the applicant that he had not returned to the office. He however indicated in the same letter that they are attending to his matter.

[16] The applicant consulted Jordaan on 31 August 2021, wherein he allegedly provided him with his comments and suggestions to be included in the supplementary affidavit. Jordaan, so the explanation continues, prepared the affidavit and a further meeting was arranged for 29 September 2021 where they discussed the content of the affidavit. Further inputs were made by the applicant which Jordaan undertook to include in the affidavit. Another meeting was held on 25 October 2021, wherein the affidavit was finalised.

[17] As already indicated, the record and supplementary affidavit were filed on 15 and 25 November 2021 respectively. The review application, though served on the company on 5 March 2019, was filed with this court on 14 January 2022.

Evaluation

[18] In terms of section 145 of the Labour Relations Act[1] (LRA), a review application must be filed within 6 weeks of receipt of the award. Rule 5 of the Rules for the Conduct of Proceedings in the Labour Court (Labour Court Rules) sets out that a document is filed when it is handed to the Registrar, or the date when the Registrar received it if filed by registered post, or on completion of the whole of the transmission of the fax.[2] The practice in this court has been that service and filing by email is permitted, of course provided both parties agree to that method of service. Therefore, where filing is by fax (or email), the original document must be filed within five days of it being faxed[3] (or email).

[19] Review applications are inherently urgent. It is expected that once instituted, it should not take more than six months for all the necessary pleadings and for the record to be filed. Section 145(5) of the LRA requires a review applicant to, within the six month period of instituting the application, apply for a date for the matter to be set down. The non-compliance with this period may only be condoned by this Court on good cause shown. This provision is often overlooked.

[20] A lot of focus is on the provisions of the Practice Manual of the Labour Court of South Africa[4], (the Practice Manual). The Practice Manual came into operation before section 145(5) of the LRA. The latter provision came into effect in January 2015.

[21] In Samuels v Old Mutual Bank[5] (Samuels), the Labour Appeal Court (LAC) stated that the Practice Manual is not intended to change or amend the Rules of this Court but to enforce and give effect to the rules and the LRA. It is trite that the provisions of the Practice Manual are binding.[6]

[22] The LAC, per Sutherland JA, in E Tradex (Pty) Ltd t/a Global Trade Solution v Finch and others[7] expanded on the application of the Practice Manual and its purpose:

‘The case law on the application of the Practice Manual has consistently applied its provisions strictly. The rationale is patent and rooted in the advent of the Practice Manual as a gloss on the Rules of the Labour Court. In a busy court inundated by cases, discipline on the part of practitioners is a critical virtue if good order and respectable turnaround times are to be achieved.’[8]

Archived file and lapsed application

[23] Item 16.1 of the Practice Manual provides that if the applicant has not taken any steps within a period of six months of launching a review application, or the date of the last process filed, the Registrar will archive the file. Once the file is archived, the review application is consequently dismissed. This archived file may be retrieved on application.[9]

[24] Item 11.2.7 of the Practice Manual reiterates that review applications are by their nature, urgent. It provides further that the applicant must ensure that all necessary papers (record and pleadings) are filed within 12 months of launching a review application and that the Registrar must be informed in writing that the application is ready to be allocated a hearing date. Failure to comply with this provision will result in the review application being archived and regarded as lapsed. Once the file is archived and the application is regarded as having lapsed, it can only be retrieved or reinstated upon application on good cause shown.

[25] It is trite that an application for retrieval of the file is effectively an application for condonation.[10] The review application was served on the company on 5 March 2019. From the date of service, the company was entitled to expect that the applicant would take steps in the next six months to prosecute the application and that all the pleadings would be filed by 4 March 2020, which is the expiry of the 12-month period. When the applicant failed to take any further step and serve the company with the necessary papers, it was within the company’s right to consider the matter as being finalised.

[26] The question is – what did the applicant do after service of the review application on 5 March 2019? There is a deafening silence for the period from 6 March 2019 to July 2020 in the applicant’s founding affidavit in this condonation and retrieval application. In his replying affidavit, the applicant provided a copy of the email which he sent to the LAB on 4 September 2019. In this email, the applicant only proposed an additional ground for review. The applicant also attached emails between him and Somo of the LAB dated between 13 and 24 February 2020. In these emails, the applicant asked for a case number. Somo, in response, was unimpressed with the request and enquired if the applicant wanted to terminate his mandate

as he considered his request as an interference with his duties.

[27] What is apparent is that the period from 6 March 2019 to 3 September 2019 is unexplained. This is a period of six months. Even when the applicant appears to do something on 4 September 2019, it is simply an email where he proposed an additional ground for review. It took a further period of five months from 5 September 2019 to 12 February 2020 to send another email to Somo. This is a period of over 11 months. These periods are excessive. The 12-month period expired on 4

March 2020. This Court need not consider whether the explanation is reasonable because there is no explanation.

[28] The prospect of success in the review application hinges on the application for condonation for the late delivery of the review application. Although the application was served on the company on 5 March 2019, it was only filed on 14 January 2022. Even if this Court decides to overlook the delay in the filing of the application, the delay in the service of the review application is 13 months. The explanation for the delay is provided for the period until 23 July 2018. From end of July 2018, there is a deafening silence until January 2019, a period of more than five months. It is not in the interest of justice to grant the retrieval of the file.

[29] The application for retrieval of the file is therefore refused.

Deemed withdrawn application and reinstatement

[30] The service of the application was effected on the CCMA in October 2020, more than 19 months after the service on the company. Shortly thereafter, the CCMA dispatched the record to the Registrar, who then informed the parties of the availability of the record on 29 October 2020 and the applicant collected it the same day.

[31] In terms of item 11.2.2 of the Practice Manual, the applicant must file the record within 60 days after he was advised by the Registrar that the record has been received from the CCMA or bargaining council. The consequence of the non-compliance with this provision is that the review application will be deemed to have been withdrawn, unless the applicant obtains consent from the respondent or applies to the Judge President (in chamber) for an extension of time.[11]

[32] The 60-day period expired on 29 December 2020. The request for consent to extend the period was refused by the company. The applicant opted not to apply for extension to the Judge President. The delay between November 2020 and 21 March 2021 was caused by the transcriber. The transcript was provided on 21 March 2021.

[33] On 14 April 2021, the applicant and his attorney, Jordaan, met to discuss the matter. On this day, Jordaan had already perused the record. It is alleged that exhibits “A2” and “C” were missing from the record. Although not pleaded, it was submitted during the hearing that these exhibits were provided to Jordaan shortly after the meeting. Jordaan and the applicant arranged a meeting for the week of 14 – 18 June 2021 but this did not take

place due to Jordaan’s ill-health.

[34] Jordaan informed the applicant on 21 July 2021 that they were attending to his matter. There were further meetings between the applicant and Jordaan on 31 August, 29 September and 25 October 2021 before the affidavit was finalised and delivered on 15 November 2021. The details and purpose of these meetings, which took place four weeks apart, are not sufficiently explained. The meeting that was arranged for 14 – 18 June 2021 was to finalise the affidavit. The record was already finalised at this stage. No explanation is provided why the record was not delivered shortly after he submitted the missing the documents.

[35] The applicant and Jordaan were at all material times aware that the record was late. When their request for consent to extend the 60-day period was rejected, they became aware or should have been acutely aware of the urgency of the matter, particularly in a case with so many delays. The record was filed 11 and a half months outside the time period.

[36] I have already addressed the prospect of success, which hinges on a successful 13 months’ delay condonation application. There is no prima facie prospect of that condonation application succeeding.

[37] To allow this application and reinstate the review application will be to encourage and condone dilatory and complacent conduct, ill-discipline and undermine the purpose of the LRA to resolve labour disputes speedily and expeditiously. The interest of justice dictates that this application be dismissed.

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

Order

1. The application for retrieval of the file and reinstatement of the review application is dismissed.

2. There is no order as to costs.

M. Makhura

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Ms. S. Nyasulu of Garlicke & Bousfield Inc (Pro Bono) (Heads of argument prepared by Cox & Partners Attorneys) For the First Respondent: Mr. G. Kirby-Hirst of Macgregor Erasmus Attorneys

[1] Act 66 of 1995, as amended.

[2] Rule 5(2) of the Labour Court Rules.

[3] Rule 5(3) of the Labour Court Rules.

[4] Effective April 2013.

[5] (2017) 38 ILJ 1790 (LAC).

[6] Samuels at para 15.

[7] (2022) 43 ILJ 2727 (LAC).

[8] Ibid at para 14.

[9] Item 16.2 of the Practice Manual.

[10] Samuels at para 17.

[11] Item 11.2.3 of the Practice Manual.