Minister of Justice and Correctional Services v Mlambo In Re: Minister of Justice and Correctional Services v General Public Services Sector Bargaining Council and Others (JR447/18) [2021] ZALCJHB 289 (23 September 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR447/18

In the matter between:

THE MINISTER OF JUSTICE AND

CORRECTIONAL SERVICES Applicant

and

J MLAMBO Respondent

In re:

THE GENERAL PUBLIC SERVICE SECTOR

BARGAINING COUNCIL First

Respondent

COMMISSIONER MARTIN SAMBO N.O Second Respondent

J MLMBO Third

Respondent

Enrolled: 25 August 2021 (disposed of without oral argument)

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 23 September 2021.

Summary: Rule 12(2) application to compel the respondent apply for condonation for late filling of its answering affidavit – application ill-considered as the Court cannot compel a party to abandon its tactical defence.

JUDGMENT

NKUTHA-NKONTWANA, J

Introduction

[1] This is one of the many unmeritorious applications that have been inundating this Court recently. Unfortunately, the applicant is State Department that funds this incautious litigation from the public purse.

[2] The applicant seeks an interlocutory order compelling the respondent to apply for condonation for the late filing of his answering affidavit in the main application. Even though the respondent filed a notice of intention to oppose this application, he has failed to file his opposing papers.

Background

[3] On 16 March 2018, the applicant launched the main application to seek an order reviewing and setting aside the arbitration award under case number GPBC63/2011, dated 11 January 2018 wherein the arbitrator ordered it to translate the respondent to a post of Centre Coordinator Staff Support level CB5 from 01 July 2009 until 01 May 2013.

[4] On 18 May 2018, the applicant filed the record of the arbitration proceedings. The applicant did not file the transcript because there was no evidence led as the matter was dealt with in terms of the written submissions. On 1 June 2018, the applicant delivered its amended notice of motion and supplementary affidavit.

[5] Instead of delivering his answering affidavit, on 18 July 2018, the respondent, through his attorneys of record, requested the transcript

of the arbitration proceedings. That is so despite the previous correspondence from the applicant, through the State Attorney,

wherein it was explained to him that it would be imprudent to transcribe the record as there was no evidence led, a fact not disputed by the respondent. So, the applicant was adamant that, for the purpose of the review application, the record that has already been filed should suffice.

[6] On 20 September 2018, the applicant received a directive from the Registrar of this Court to file its heads of argument. The applicant’s heads of argument were duly filed on 18 October 2018. The respondent then filed his answering affidavit on 1 November 2018 without any condonation application.

[7] The applicant asserts that it served the respondent with the notice of objection to the late filing of the answering affidavit in terms of clause 11.4.2 of the Labour Court Practice Manual (Practice Manual). However, there is no proof of such notice in the file. On 25 February 2019, the applicant filed a notice of the respondent’s failure to comply with Rule 12 of the Labour Court Rules (Rules) by failing to apply for condonation for the late filing of its answering affidavit in terms of Rule 7A(9). The respondent was put on terms to comply with Rule 7A(9) with a threat that should he fail to do so, this application would be launched.

[8] The respondent is yet to file a condonation application. It is apparent, nonetheless, from the answering affidavit filed in the main application that the respondent is of a view that his answering affidavit was not due since the applicant did not serve him with the transcript and a formal Rule 7A(8) notice.

Analysis

[9] The applicant obviously misconstrued the purpose of Rule 12(2)[1]. This provision is aimed at assisting the parties, especially the applicant party who is dominus litus, to take timeous steps to compel compliance with the LRA and/or the Rules, in particular, the functionaries to comply with their

responsibility to dispatch the record of proceedings within 10 days of receipt of the notice of motion, if they fail to do so. Put otherwise, it is aimed at compelling functionaries from statutory bodies, inter alia the Commission for Conciliation Mediation and Arbitration (CCMA) and Bargaining Councils, to comply with their legal obligations.[2]

[10] However, when it comes to the litigants themselves, failure to comply with the LRA and/or the Rules may result in a party who is dominus litus being non-suited and thus dispose of the matter; alternatively, if it is the respondent party, being barred from defending the matter or the defence stuck off and thus the matter proceed as unopposed.[3]

[11] There was no need for the applicant trigger Rule 12(2), such an expensive and time consuming process. An objection to the late filing of the respondent’s answering affidavit could have been taken as a point in limine in the main application. Moreover, since it is apparent that the respondent has a tactical defence.

[12] To my mind, that is what renders this application ill-considered. For some inexplicable reasons, the applicant seems to expect this Court to compel a litigant to abandon its tactical defence and consequently offer a procedural suggestion.

Conclusion

[13] It follows that this application is contrary to the objects of the LRA and cannot be countenanced by this Court.[4] As such, it must fail.

Costs

[14] 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. In the present instance, I am disinclined to award costs against the applicant.

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

Order

1. The Rule 12(2) application is dismissed.

2. There is no order as to costs.

P Nkutha-Nkontwana

Judge of the Labour Court of South Africa

[1] Rule 12(2) provides: ‘If a party fails to comply with any notice or direction given in terms of these rules, any interested party may apply on notice for an order that the notice or direction be complied with within a period that may be specified, and that failing compliance with the order, the party in default will not be entitled to any relief in the proceedings.

[1] Rule 12(2) provides:

‘If a party fails to comply with any notice or direction given in terms of these rules, any interested party may apply on notice for an order that the notice or direction be complied with within a period that may be specified, and that failing compliance with the order, the party in default will not be entitled to any relief in the proceedings.

[2] See: Bezuidenhout v Johnston NO & Others (2006) 27 ILJ 2337 (LC) at para 30-31.

[3] National Education Health & Allied Workers Union on behalf of Leduka v National Research Foundation (2017) 38 ILJ 430 (LC ) at para 25.

[4] See: National Education Health & Allied Workers Union v University of Cape Town & others 2003 (3) SA 1 (CC); (2003) 24 ILJ 95 (CC) at para 31. It was stated that: 'By their very nature labour disputes must be resolved expeditiously and be brought to finality so that the parties can organize their affairs accordingly. They affect our economy and labour peace. It is in the public interest that labour disputes be resolved speedily ... .'

[4] See: National Education Health & Allied Workers Union v University of Cape Town & others 2003 (3) SA 1 (CC); (2003) 24 ILJ 95 (CC) at para 31. It was stated that:

'By their very nature labour disputes must be resolved expeditiously and be brought to finality so that the parties can organize their affairs accordingly. They affect our economy and labour peace. It is in the public interest that labour disputes be resolved speedily ... .'