MEC: Department of Health Eastern Cape Province v PHSDSBC and Others (PR187/16) [2020] ZALCPE 4 (7 February 2020)

THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH

Not Reportable

case no: PR 187/16

In the matter between:

MEC: DEPARTMENT OF HEALTH

EASTERN CAPE PROVINCE Applicant

and

THE PHSDSBC First

Respondent

NCUMISA BANTWINI N. O

Second Respondent

DENOSA obo NONTHANDO SIBEKO Third

Respondent

Heard: 6 February 2020

Delivered: 7 February 2020

Summary: Application to reinstate a lapsed review application. A party has an automatic right of review. The provision of the Practice Manual is not intended to take away that automatic right. Clause 11.2.7 of the Practice Manual requires archiving before an application is regarded as having lapsed. In terms of clause 16 of the Manual archiving is to be done by the Registrar of the Labour Court. Where no archiving has occurred, the application does lapse. Applications for reinstatement should be considered against the background of the automatic right of review. Held (1): The application is reinstated. Held (2): The late filing of the notice in terms of rule 7 A (8) is hereby condoned. Held (3): Directions issued. Held (4): No order as to costs.

JUDGMENT

MOSHOANA, J

Introduction

[1] The application before me is effectively unopposed. The respondent has filed the answering affidavit out of time and the applicant objected thereto. Despite the objection, the respondent failed to file a condonation application. The third respondent’s representative submitted that the matter shall be argued based on the applicant’s founding papers. The application came before me for consideration and directions.

Background facts

[2] On 5 October 2016, the applicant launched a review application in terms of section 145 of the LRA. The said review application was launched outside the prescribed time period. Condonation for the late filing was sought yet to be decided. On 6 December 2016, the Registrar of this Court advised that a record of the proceedings sought to be reviewed and set aside was dispatched. After transcription of the record, it was discovered that certain portions of the record were unrelated to the review launched. Nonetheless, within the 60 days’ period as prescribed by the Practice Manual, a record enclosing the wrong portions was served and filed. Thereafter attempts were made to excise the wrong portions from the record. During those attempts, the period prescribed by the

Practice Manual to file all the necessary papers went passed. The Registrar of this Court was advised of the problems relating to the record. Further attempts were made to obtain a correct record.

[3] Various emails were exchanged in that regard. In the interim, the award was certified. No execution steps were taken. This after the third respond failed to answer to a request to hold steps in abeyance pending the finalization of the review application. On or about September 2018, the applicant launched the present application.

Evaluation

[4] It is not altogether clear as to what prompted the present application. Regard being had to the founding affidavit; it appears that the applicant basically seeks condonation for the non-compliance with the time period related to a rule 7A (8) notice. Also, the applicant seeks a declarator that the application for review must not be archived. Nonetheless, in terms of section 145 of the LRA, the applicant has an automatic right of review. The only legal barrier is the time period prescribed by the legislature. It is common cause that the application for review was launched outside the prescribed time period. However, the applicant sought condonation and a decision on it is still pending. Section 145 (5) of the LRA provides that subject to the rules of the Labour Court a party who brings the application under subsection (1) must apply for a date for the matter to be heard within six months of delivery of the application, and the Labour Court may, on good cause shown, condone a late application for a date for the matter to be heard. Thus, I take a view that at the very least, in terms of the LRA, a review does not lapse.

[5] Therefore, the only condonation that may be sought by an applicant for review is for the late application of the hearing date. Of course the provisions of section 145(5) are constrained by the rules of the Labour Court. The rules of the Labour Court were published in November 1996 and were last amended in August 2001. Rule 7A deals with reviews in the Labour Court. Rule 7 governs applications in general. Review being an application, the provisions of rule 7 applies to it as well. In terms of rule 7 (6) (a) it is the duty of the Registrar to allocate a date of a hearing of the application once a replying affidavit has been filed. Since a replying affidavit has not been filed in this matter a date cannot be allocated in this matter. In any event, rule 7A (6) requires the applicant to furnish a record. Once a record is delivered an applicant may file a supplementary affidavit or file a notice to stand by its notice of motion. All of that did not happen, as such an application for a date of hearing is not possible.

[6] Owing to the deficiencies in the rules of the Labour Court, in April 2103 the Practice Manual was put in place. Of course, it has already been held by the LAC that the provisions of the Practice Manual are binding[1]. In this matter, it is common cause that the Registrar did not archive the present application. In terms of clause 16 (1) if six months passes the Registrar will archive a review application. The effect of archiving is the same as the application being dismissed. I take a view that clause 11.2.7 does not find application in this instance. The plain wording of the clause is that where the time limit is not complied with, the application will be archived and regarded as lapsed. Since the review was not archived by the Registrar, it cannot be regarded as having lapsed.

[7] What clause 11.2.7 contemplates is that where a review application has not been archived by the Registrar, a reviewing party may approach this Court[2] show good cause why the application should not be archived. Ordinarily, where good cause is to be shown, such implies a condonation application. The technicality around this clause is that in terms of the Manual, archiving is to be done by the Registrar and not the Court. The question is, if archiving is not done yet, should a good cause be shown to the Registrar not to archive? The LAC in Samuels has already pointed out that an application to retrieve from the archives is effectively an application for condonation. Can it be said that an application not to have a review application archived is effectively an application for condonation? Perhaps yes. However, condonation is required, mainly where the time period prescribed by the rules and or the Act have not been complied with. Thus, the condonation sought in this instance is for the non-compliance with the 12 months’ period. According to the clause, what would befall a reviewing party, if the 12 months’ period is not adhered to, is the archiving of the application.

[8] The question that immediately emerges is, is it really necessary to bring a substantive application, to be treated as a condonation application, to simply prevent archiving? In my view, it is unnecessary to do so. However, on a literal interpretation of this clause, in isolation, one would emerge with an answer that condonation application – show good cause why the application should not be archived – is necessary. However, if the clause is considered within the context of the Manual as a whole, taking into account other clauses like 11.2.3, where the non-compliance with the prescribed period is dealt with, a different picture begins to emerge. There, parties may request extension from each other and if they do not agree, an application to be heard in chambers may be brought. Samuels made it clear that the discretion in interpreting and applying the provisions of the Manual remains intact for the Labour Court.

[9] It is my interpretation of clause 11.2.7 that in an instance where an archiving is to happen but had not happened, the applicant like the one before me, may seek an extension of the time period from the other party and only when an extension is not granted, can a party approach the Judge President as contemplated in clause 11.2.3.

[10] I am acutely aware that the procedure contemplated in 11.2.3 only happens intra-prescribed period. It has to take place before the 60 days’ period elapse. One can then say, if the procedure contemplated in clause 11.2.3 were to be inferred in 11.2.7, then it must happen before the expiry of the 12 months’ period. Much as there may be force in that saying, to my mind, even after the expiry, that process is still possible because, the worst – archiving – would not have happened. I do not interpret clause 11.2.7 to mean that the lapsing is automatic. Unlike the provisions of 11.2.3, the deeming provisions are automatic. It does not follow, in my interpretation of clause 11.2.7, that once 12 months passes, the review lapses automatically. If that is so, then this phrase would be rendered meaningless: “the application will be archived and be regarded as lapsed”. Literally, this phrase means that once archived then and only then would an application be regarded as lapsed. The usage of the word ‘and’ in this regard denotes something happening together and or simultaneously and not one without the other. A symbiotic taking

place (archiving and lapsing) must have been intended by the drafters of the Manual.

[11] All of the above may soon become history, once the new rules of this Court are published or gazetted. All I say in that regard is, the sooner the better. Given the view I take above, an application to avoid archiving is unnecessary.

[12] However, if I am wrong in my view, I take a view that there is merit in the unopposed application for condonation. I am satisfied that a reasonable and proper explanation has been furnished why this application, if it has lapsed on 6 October 2017, should be reinstated. In terms of the Manual, only an archived application is considered dismissed. The review application in this matter cannot be considered to be dismissed, but can only be considered to have lapsed. In order to bring it back to life, an application for reinstatement is required. Much as Samuels held that an application for retrieval is effectively an application for condonation, the application before me has not been archived yet, thus it does not require a retrieval application.

[13] Dealing with a lapsed appeal the SCA in Mtshali & others v Buffalo Conservation 97 (Pty) Ltd[3] held as follows:

[37] The approach of this court to condonation in circumstances such as present is well-known. I Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and Development Company Ltd and others[4] Ponnan JA held that factors relevant to the discretion to grant or refuse condonation include the ‘degree of non-compliance, the explanation thereof, the importance of the case, a respondent’s interest in the finality of the judgment of the court below, the convenience of this court and the avoidance of unnecessary delay in the administration of justice.’

[14] The position as posited on in Darries v Sheriff Magistrate’s Court Wynberg & another[5] applied in a situation of non-observance of the rules. With regard to prospects of success, it was said ‘it is advisable (not obligatory it seems to me[6]) that the petition should set forth briefly and succinctly such essential information as may enable the Court to assess the appellant’s prospects of success.’ My brother Van Niekerk J in the matter of Robor Tube (Pty) Ltd v MEIBC and others[7] took a view that a withdrawn application can be reinstated. He further took a view that a fresh notice of motion and an affidavit

are not required for a withdrawn review. He also held that such applications to reinstate should be considered on the strength of the inherent powers that this Court has. I am in agreement. I may add, in my view, since a right to review is automatic, refusing applications to reinstate is as good as denying an applicant an automatic right of review.

[15] In my view, it is not a requirement that an applicant must demonstrate excellent prospects of success to gain reinstatement. Such is not required since all that an applicant would obtain is a regain of the automatic right of review. Such a review application may still be dismissed and or upheld by a Court of review. With that possibility, it is an unnecessary burden to require an applicant to demonstrate excellent prospects of success at this stage. I agree that reinstating a hopeless review application would be nothing but clogging the roll and effectively troubling a judge with a non-meritorious reviews. Unfortunately, there is no mechanism to gate-keep in reviews. Unlike in appeals, a mechanism to gate-keep is provided through the need to apply for leave to appeal.

[16] Refusing to reinstate a review application simply because it lacks excellent prospects of success is at odds with section 34 of the Constitution.

[17] In my view when an application for reinstatement is considered by this Court, in the circumstances where the record has not been filed timeously, regard must also be heard to the provision that allows for an extension of the time period either by consent and or through an application to be considered in chambers. Thus, if a party takes advantage of the opportunity to seek a consent and or apply within the stated period chances are that the extension may be granted, in which event a deemed withdrawal may not take

place. Similarly, where an application is made for reinstatement, it ought to be treated the same way as an application for an extension should consent be refused.

[18] This practical approach, which augurs well with the approach by Robor Tube, that the Court must exercise its inherent discretion, is to encourage practitioners to first seek a consent to reinstate the withdrawn/lapsed review, failing which an application must be brought. Such applications may even be entertained in chambers.

[19] I do not understand Macsteel Trading Wadeville v Francois van der Merwe N.O[8] to be suggesting that “the substantive application” to reinstate must be heard in an open Court. On the contrary, regard

being had to the imperatives of expeditious resolution of labour disputes, there is no policy reasons why such applications may not be considered in chambers.

[20] In conclusion on this aspect, I take into account the difficulties encountered with regard to the record. It is common cause that insurmountable quandaries have been suffered by the applicant in obtaining a correct record and the third respondent seem to had taken a supine attitude to quandary. With such difficulties abound, it serves the interest of finality, convenience of the court

and avoids unnecessary delay to reinstate the review application and condone the non-compliance with rule 7A (8) of the Rules of Labour Court. It is indeed so that the review application is important for the applicant. Had it not been for the launching of this application, which I consider unnecessary, the record having been filed in time, albeit with incorrect portions, the review application may have been finalized by now.

[21] For all the above reasons, the application for reinstatement ought to be granted.

[22] In the results I make the following order:

Order

1. The review application is reinstated.

2. The non-compliance with rule 7A (8) is hereby condoned.

3. The applicant is directed to serve and file with the registrar an amended record of the proceedings sought to be reviewed and set aside within 10 days of this order.

4. Further, the applicant is directed to comply with the provisions of rule 7A (8) by either service of a notice to stand by or filing a supplementary affidavit within 10 days of this order.

5. The third respondent is directed to file an answering affidavit, if any, within 10 days after receipt of the notice to stand by or a supplementary affidavit.

6. The applicant would file a replying affidavit, if any, within the time period prescribed by the rules and if so advised.

7. The applicant is directed to apply for hearing date shortly thereafter.

8. There is no order as to costs.

_______________________

G. N. Moshoana

Judge of the Labour Court of South Africa

Appearances

For the Applicant: Advocate AH Shene

Instructed by: State

Attorney, Port Elizabeth.

For the third Respondent: Mr D Carls of Carls Attorneys, Johannesburg.

[1] Samuels v Old Mutual Bank [2017] 38 ILJ 1790 (LAC)

[2] Although the text of the clause does no specifically say so.

[3] (250/2017) [2017] ZASCA 127 (SCA)

[4] [2013] 2 All SA 251 (SCA)

[5] 1998 (3) SA 34 (SCA)

[6] My own addition.

[7] [2018] 39 ILJ 2332 (LC)

[8] [2019] 40 ILJ 798 (LAC)