Mokotjo v Mokgotsi NO and Others (JR 1644/13) [2021] ZALCJHB 241 (17 August 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 1644/13

In the matter between:

PHOOFOLO VINCENT MOKOTJO Applicant

and

MAKOLE JACOB MOKGOTSI N.O. First Respondent

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION Second

Respondent

HARMONY GOLD MINE (PTY) LTD Third

Respondent

Determined on papers

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 17 August 2021.

JUDGMENT

MAHOSI. J

Introduction

[1] This is an application brought by the applicant in terms of section 145 of the Labour Relations Act[1] (LRA) to review and set aside the arbitration award issued by the first respondent (the commissioner) under the auspices of the second respondent, the Commission for Conciliation, Mediation and Arbitration (the CCMA) under case number FS 6168-10, dated 12 February 2011.

[2] Coupled with this application, is the condonation application for the late filing of the aforementioned review application.

[3] Prior to outlining the applicant’s case in detail and considering the issues that gave rise to the claim, it is necessary to outline the facts that form the relevant background to the dispute between the parties.

Background

[4] The applicant was employed by the third respondent from 08 December 1983 as a Human Resources Technical Professional Level 2 at Tsepong Mine. The applicant was charged as follows:

‘Gross dishonesty: in that you received money for promising person(s) a job(s) on the shaft

1. 2007 November

2. 8 September 2009’.

[5] Following a disciplinary enquiry which was held on 05 July 2010, the applicant was found guilty and dismissed on 08 September 2010. Aggrieved by the third respondent’s decision to dismiss him, the applicant referred a dismissal dispute to the CCMA on 06 October 2010 challenging the substantive and procedural fairness of his dismissal.

[6] The dispute was conciliated unsuccessful on 03 November 2010 and the certificate of non-resolution was issued. The applicant then referred the dispute to arbitration that was held on 03 February 2011. Subsequent thereto, the commissioner issued an arbitration award in terms of which he found that the applicant’s dismissal was both procedurally and substantively fair. It is this award that is the subject of this application.

[7] To an extent that section 145 requires the applicant to file a review application within six weeks from the date the award was issued and that the applicant filed his application outside the prescribed period, it follows that the Court ought to determine whether the case for condonation has been made.

The condonation application

[8] As aforementioned, the award was issued on 12 February 2011. However, the review application was served on the respondents on 08 August 2013 and filed on 14 August 2013. The delay is approximately two years and five months, which is excessive.

[9] To explain the reason for the delay, the applicant submits that on 17 February 2011 while in Lesotho, he was arrested for malicious damage to property. Further that although he received bail, it was one of the bail conditions that he should surrender his passport and not leave Lesotho until his criminal case was finalised. It is his further submission that his criminal case was finalised on 31 July 2013.

[10] In opposing the condonation application, the third respondent submits that the delay in filing the review application is excessive and that the explanation proffered for the delay is not reasonable. Further that the applicant has no prospects of success in the review application. In addition, the third respondent challenged the jurisdiction of this Court to adjudicate the matter on the basis that the applicant failed to show good cause why his application should not be archived or be removed from the archive as envisaged in paragraph 11.2.7 of the Practice Manual.

[11] The first issue for determination is whether this Court has jurisdiction to adjudicate this application. To do that, one ought to consider the relevant clauses of the Practice Manual which provide as follows:

‘11.2.7 A review application is by its nature an urgent application. An applicant in a review application is therefore required to ensure that all the necessary papers in the application are filed within twelve (12) months of the date of the launch of the application (excluding Heads of Arguments) and the registrar is informed in writing that the application is ready for allocation for hearing. Where this time limit is not complied with, the application will be archived and be regarded as lapsed unless good cause is shown why the application should not to be archived or be removed from the archive.

…

16.3 Where a file has been placed in archives, it shall have the same consequences as to further conduct by any respondent party as to the matter having been dismissed.’

[12] In the current matter, to an extent that the review application was filed on 13 August 2013, the 12-month period as envisaged in paragraph 11.2.7 expired on 14 August 2014. The third respondent filed the answering affidavit on 12 February 2014 and the applicant filed the replying affidavit on 12 February 2015. On 20 May 2015, the applicant filed the heads of arguments.

[13] It is apparent that the applicant failed to comply with the time limit. Therefore, his application was archived and regarded as lapsed. The applicant has not filed an application for an order to reinstate the review application or retrieve it from the archives, which is fatal to his case. This is despite the correspondence that was addressed by the third respondent’s attorneys to the applicant and his attorneys on 01 September 2020, in terms of which they were advised that the dies for the delivery of all the pleadings and the request for the Registrar to allocate a hearing date, as contemplated in paragraph 11.2.7 of the Practice Manual, expired on 14 August 2014.

[14] In the absence of the substantive reinstatement application, this Court lacks jurisdiction to adjudicate the review application and the condonation application for late filing thereof.[2]

Costs

[15] With regard to costs, I am of the view that this is a case where the interests of justice and fairness will be best served by making no order as to costs.

[16] Accordingly, the following order is made:

Order

1. The application is struck off the roll for lack of jurisdiction.

2. There is no order as to costs.

D. Mahosi

Judge of the Labour Court of South Africa

Representatives:

Attorneys for the applicant: In

person

Attorneys for the third respondent: Webber Wentzel attorneys

[1] Act 66 of 1995, as amended.

[2] See Macsteel Trading Wadeville v Van Der Merwe NO and others (2019) 40 ILJ 798 (LAC) at para 25