MJRM Transport Services CC v Commissioner for Conciliation, Mediation and Arbitration and Others (JR1171/14) [2016] ZALCJHB 370; [2017] 1 BLLR 40 (LC); (2017) 38 ILJ 414 (LC) (20 September 2016)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable

Case no: JR1171/14

In the matter between

MJRM TRANSPORT SERVICES CC Applicant And THE COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION First Respondent COMMISSIONER B S MTHETHWA Second Respondent JAMES SYLVESTER MOTALN Third Respondent

Heard: 21 April 2016

Delivered: 20 September 2016

JUDGMENT

TLHOTLHALEMAJE, J.

Introduction:

[1] Having launched an application for a review, the Applicant filed the record of proceedings some 8 days outside of the 60 days’ period as prescribed in the Practice Manual of this Court. It subsequently filed an application for condonation in that regard, which application is opposed.

[2] Two preliminary points were taken in opposing the application. The first is that in terms of the Practice Manual of this Court, the review application is deemed to have been withdrawn making it impossible to grant condonation under the circumstances, and further that an incorrect procedure (application for condonation) has been pursued in seeking an indulgence in respect of the late filing of the record.

Background to the dispute:

[3] The Third Respondent herein (the Employee) was in the employ of the Applicant until March 2012 when he resigned on allegations of a strained relationship between the parties. At the time of his resignation he was employed as a General Manager, and a decision was taken by the Applicant to continue an employment relationship with an employee whose employment the Employee had terminated, as well as to move the business premises of the Applicant from its location at the time. As a consequence of these events, the Employee felt undermined and no longer able to continue with the employment relationship, and subsequently handed in his resignation.

He approached the CCMA with an alleged constructive dismissal dispute.

[4] The dispute was arbitrated under case number GAJB11499-12 and an award was issued on 30 April 2014 in terms of which Commissioner Mthethwa found that the Employer’s conduct amounted to a constructive dismissal and awarded him four months’ compensation in the amount of R128 000.00.

[5] Aggrieved, the Applicant launched the review application. The supplementary affidavit was filed on the same date as the record of proceedings on 23 September 2014. Since the filing of the supplementary affidavit and the record, no further steps have been taken in respect of the review application itself, as the present interlocutory application has been pursued.

Condonation application:

[6] The filing of the record being some 8 days outside of the prescribed 60 days as prescribed in the Practice Manual, the explanation proffered in that regard was that the transcribed record was uplifted on 4 August 2014. Thereafter the Applicant’s counsel was met on 16 September 2014 in order to prepare the record. A decision was taken to file the record and the supplementary affidavit at the same time for the sake of convenience and in order not to duplicate costs. The filing of the supplementary affidavit according to the Applicant was not late, as it was within the extra period of 10 days provided for however the record was late.

[7] It was further submitted on behalf of the Applicant that the Employee would suffer no prejudice as a result of the delay which it submits is not excessive. It was further submitted that it had excellent prospects of success as the Employee was not constructively dismissed, and that the frivolous and vexatious nature of the Employee’s claim can only be brought to light if condonation is granted.

[8] As mentioned above the Employee raised two points in limine in his opposition to the condonation application. The first point is that it is not possible to grant condonation as it is deemed that the review application has been withdrawn in accordance with the provisions of Paragraph 11.2.3 of the Practice Manual.

[9] It was submitted on behalf of the Employee that there was no request made for an extension of time from the Employee and accordingly the review is deemed to be withdrawn and cannot be revived. The Employee states further that the remedy prescribed in the above provision of the Practice Manual i.e. an application made to the Judge President for an extension of the time period was not followed and that the current procedure followed was not correct. Accordingly based on either ground individually the Employee seeks that the condonation application be dismissed with costs.

[10] In response to the merits of the application, the Employee submitted that there is no explanation of the delay between the collection of the record and consultation with counsel; that there is no reasonable explanation for the lateness; that no basis was laid for the allegation in regards to prospects of success other than bald allegations. The Employee also submitted that he has suffered grave prejudice as a result of having to wait for his award to be enforced; that the Applicant was abusing the court system in order to avoid paying the compensation awarded to him, and additionally had caused him to occasion unnecessary expenses in the present litigation. He seeks the dismissal of the application with costs as between attorney and client.

Evaluation:

[11] Paragraph 11.2.3 of the Practice Manual provides 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. The application must be accompanied by proof of service on all other parties, and answering

and replying affidavits may be filed within the time limits prescribed by Rule 7. The Judge President will then allocate the file

to a judge for a ruling, to be made in chambers, on any extension of time that the respondent should be afforded to file the record.”

[12] In Ralo v Transnet Port Terminals and Others[1], Van Niekerk J in examining the status of the Practice Manual, and further in reference to Tadyn Trading CC t/a Tadyn Trading Consulting Services v Steiner & others[2] held that;

‘I agree. The practice manual contains a series of directives, which the Judge President is entitled to issue. In essence, the manual sets out what is expected of practitioners so as to meet the imperatives of respect for the court as an institution, and the expeditious

resolution of labour disputes (see paragraph 1.3). While the manual acknowledges the need for flexibility in its application (see

paragraph 1.2) its provisions are not cast in the form of a guideline, to be adhered to or ignored by parties at their convenience’.

[13] The views expressed in the authorities above are in point and find support in the objectives of the Manual as can be gleaned from its ‘Introduction’ part which are essentially; to promote access to justice by all those whom the Labour Court serves; to promote consistency in practice and procedure; to set guidelines on the standards of conduct expected of those who practise in this Court; to tell representatives and litigants how things are done in this court, and what is expected of them; to address the need to maintain respect for the court as an institution; to promote efficiency in the adjudication of disputes; to improve the quality of the court’s service to the public, and to promote the statutory imperative of expeditious dispute resolution

[14] The Manual as it states in its ‘Introduction’ is not a substitute for the Labour Court Rules. Its purpose is to fill in gaps not adequately catered for in either the Rules or the provisions of the LRA for the proper functioning of the court and expeditious resolution of disputes. Inasmuch as its provisions call for flexibility in their application where required, litigants are nevertheless bound by them. To hold otherwise would lead to a dysfunctional court system, where parties can litigate in any manner that they deem fit, simply because it suits them to do so.

[15] Clause 11.2.3 of the Practice Manual makes it clear that if the Applicant fails to file the record of proceedings within the prescribed period of 60 days, 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 granted. In explaining the implications of these provisions, Van Niekerk J in Ralo[3] held that;

‘…. The plain and unambiguous wording of the practice manual is to the effect that the applicant must be regarded as having withdrawn the review application.’

And,

‘To the extent that the applicant contends that he will suffer prejudice on account of any application of paragraph 11.2.3 of the practice manual and that he will be deprived of his right to access to court and to have his application fully ventilated, this is simply not so. The proper order, it seems to me, in circumstances such as the present, is to strike the review application from the roll. There is no bar, either in the Rules of this court or the practice manual to the applicant filing an application in which he seeks to have the review application reinstated, together with an application in which condonation for the late filing of the record is sought’

[16] Thus where there is non-compliance with the 60 day’s prescribed period, the application for review is for all intents and purposes, deemed to be withdrawn (i.e., from the 61st day), unless the respondent’s party grants the extension. Where no extension is granted, 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.

[17] By all accounts, and to the extent that the Manual requires the Applicant to apply to the Judge President for extension by way of notice of motion supported by an affidavit, and to serve such an application, and further to the extent that answering and replying affidavits may be filed within the time limits prescribed by Rule 7, it can only be inferred that the extension sought can only be akin to an ordinary application for condonation as Van Niekerk J correctly pointed out in Ralo. There is therefore no merit in the Third Respondent’s contention that the application for condonation as in this case is an irregular step. An extension sought from the Judge President must be in the form of an application for condonation.

[18] A further misconception that needs to be dispelled in this court is that whenever the provisions of clause 11.2.3 of the Practice Manual are to be invoked, the respondent party can by necessity, implore the Court to dismiss the main review application. It could never have been the intention of the provisions of the Practice Manual to allow parties to by-pass the other provisions of the Rules of this Court where there is an allegation of a failure to timeously prosecute a review application.

[19] To the extent that the court may decline a request for an extension within the context of clause 11.2.3 of the Practice Manual, it follows that the review application will by virtue of having been deemed to be withdrawn, remain struck off the roll in line with Van Niekerk J’s approach in Ralo. The Applicant will therefore still have the right to file an application to reinstate the review application, together with an

application for condonation for the late filing of the record where none had been filed as at the hearing of the request for an

extension. Where a record has been filed albeit out of time as in this case, it is for the court to issue any further directive in regards to the matter.

[20] On the whole however, there is nothing in the Practice Manual that enjoins the Court to dismiss a review application where the provisions of clause 11.2.3 are invoked. It is still open to the other party to the review application to bring an application to dismiss in terms of Rule 11 of the Rules of this Court. The provisions of clause 11.2.3 were not meant to circumvent those of Rule 11 of the Rules of this Court.

[21] A further aspect of clause 11.2.3 of the Manual is that from an administrative point, such matters must ordinarily be dealt with in chambers once all the necessary affidavits have been filed for a judge to issue a ruling. Such matter should thus not be placed on the already overburdened motion roll, as they can be disposed of in chambers, without parties having to incur unnecessary costs in court appearance.

[22] To come back to the central issue before the court, in considering whether to grant an extension, the Court would still be obliged to take account of the ordinary principles related to applications for condonation as set out in Melane v Santam Insurance Co. Ltd[4] and other authorities. Thus a judge determining whether an extension ought to be granted should in exercising his or her discretion, take into account the degree of lateness in failing to comply with the 60 days’ period, the explanation in that regard, the prospects of success and the importance of the case. We are reminded that these factors are interrelated and should be considered as such. A further consideration is that of the interests of justice[5]. To the extent that the Manual states so, it should further be taken into account that its provisions should not be applied rigidly,

taking into account its purpose nevertheless.

[23] In this case, a delay of 8 days in filing the record of proceedings is not excessive. The explanation that the delay was as a result of the Applicant’s counsel having to prepare the supplementary affidavit by first perusing the record is indeed acceptable and reasonable. To the extent that the delay is negligible and the court has accepted the explanation in that regard, it would not be necessary to deal with other factors pertinent to condonation applications.

[24] It should however be stated that it is doubted that the delay in question could have caused any prejudice to the Third Respondent. It is appreciated that the Third Respondent is entitled to enjoy the benefits of his favourable award and to find closure on the matter. Equally so however, the Applicant is entitled to challenge the arbitration award if it is of the view that the conclusions reached therein do not fall within a range of reasonableness. It further needs to be pointed out that it could never be in the interests of justice to deprive the Applicant of an opportunity to challenge the award in circumstances already pointed out. The Practice Manual calls for its provisions not to be applied inflexibly, and not to grant the extension in this case in the light of the circumstances of this case would be to act rigidly.

[25] I have further had regard to considerations of law and fairness, and I am not convinced that the circumstances of this case calls for a cost order. Accordingly, the following order is made;

Order:

i. The late filing of the record of proceedings is condoned

ii. The Registrar of this Court is directed to set-down the matter for the hearing of the review application.

iii. There is no order as to costs

__________________

Tlhotlhalemaje, J

Judge of the Labour Court of South Africa

APPEARANCES:

On behalf of the Applicant: Mr C Levin of Cranko Karp & Associates Inc.

c/o Clifford Levin Attorney

On behalf of the Respondent: Adv. Y Saloojee

Instructed by:

Alan E Warrener Attorney

[1] [2015] 12 BLLR 1239 (LC) at para [9]

[2] (2014) 35 ILJ 1672 (LC)

[3] At paragraphs [10] and [11]

[4] 1962 (4) SA 531 (A) at 532B-E

[5] Brummer v Gorfil Brothers Investments (Pty) Ltd [2000] ZACC 3; [2000] (2) SA 837 (CC) at 839 F