Motjamela v Commission for Conciliation Mediation and Arbitration and Others (C73/2021) [2024] ZALCCT 58 (28 November 2024)

THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN

Not Reportable

case no: C73/2021

In the matter between:

THABANG MOTJAMELA Applicant and COMMISSION FOR CONCILIATION MEDIATION AND ARBITRATION First Respondent ANELE MGUBASI Second Respondent GEORGE LOCAL MUNICIPALITY Third Respondent

Heard: 13 September 2024

Delivered: 28 November 2024

Summary: Application to reinstate a review application that is deemed to have been withdrawn due to a failure to file the record within the prescribed 60-day period. The reason the transcript was not filed is affordability. Legal Aid and SASLAW declined the request for assistance due to poor prospects of success. No good cause shown and the application is dismissed.

JUDGMENT

GANDIDZE, AJ

Introduction

[1] The applicant, Mr. Thabang Motjamela, seeks an order to reinstate a review application deemed to be withdrawn, lapsed, and archived as contemplated in clauses 11.2.2, 11.2.3, 11.2.7 and 16.1 of the Labour Court Practice Manual, which applied when the applicant launched his review application. Briefly stated, these provisions require an applicant in a review application to file the record in the review within 60 days, calculated from when the Registrar of the Court issues a notice in terms of rule 7A(5) of the Rules for the conduct of Proceedings in the Labour Court, that the record is available and to ensure that all necessary papers in the

review application are filed within 12 months of the date of launching the review application. If those timelines are not complied

with, the review application is deemed withdrawn, having lapsed, and the file is archived and can only be re-instated on good cause shown. George Local Municipality, the third respondent, opposed the application.

Background facts

[2] On 12 February 2021, the second respondent commissioner, acting under the auspices of the Commission for Conciliation, Mediation and Arbitration (CCMA), the first respondent, issued an award dismissing an unfair discrimination claim lodged by the applicant against the third respondent.

[3] The applicant launched a review application in this Court on or about 17 February 2021.

[4] On 18 February 2021, the applicant wrote to the Court requesting permission to serve documents via e-mail as he was unemployed. He also explained that he lost his father, who had been paying for things using the SASSA grant, and his mother’s SASSA grant was being used to raise his sister’s three children. The letter states that he would e-mail some documents when he sends the transcription, but in the meantime, he requires permission to provide CDs only.

[5] On or about 20 and 21 February 2021, the applicant delivered an additional affidavit and a supporting statement in the review.

[6] The CCMA delivered the contents of its file to the Court. The Registrar of the Court issued three rule 7A(5) notices regarding the review record filed by the CCMA, with the last notice being issued on 26 March 2021. In terms of clause 11.2.3 of the Practice Manual, a party unable to file the record within 60 days after the Registrar has issued a rule 7A(5) notice may seek the consent of the respondent to extend the 60 days, and if consent is refused, the applicant may approach the Judge President of the Court with an application seeking extension of the 60 days.

[7] It is the applicant’s case that on 4 March 2021, he emailed officials of the third respondent seeking consent to extend the 60 days. The third respondent denies receiving this communication.

[8] After filing the review application, the applicant wrote to the Court and the third respondent that he could not afford to pay for transcription since he was unemployed and needed assistance transcribing the record. The third respondent denies receiving this communication.

[9] The Rule 7A(5) notice of 26 March 2021 was preceded by a directive requiring the applicant to provide proof of service of the review application on the third respondent and advising him that service by e-mail could only be effected with the consent of the third respondent. He was referred to Legal Aid for assistance in transcribing the arbitration proceedings. On 13 April 2021, the applicant wrote to the Registrar advising that he had requested permission from the third respondent to serve the review application

by e-mail. Communication with the third respondent was not provided to the Registrar. He repeated that he did not have the funds to transcribe the record.

[10] To guide the applicant, on 30 April 2021, the Court directed him to serve all papers to the third respondent at the e-mail address used during the arbitration proceedings. He was required to provide proof of the e-mail transmitting the review application to the third respondent and an e-mail confirming receipt of the application, alternatively, an affidavit confirming that the application had been received. He was advised to approach the Legal Aid for assistance with the transcripts, and the contact details of Legal Aid George office were provided. The applicant was also informed that if he could not file the review record within 60 days of 26 March 2021, he should seek the third respondent’s consent to extend the period; alternatively, he must apply to the Court for an extension. The relevant portions of the Practice Manual were furnished to the applicant.

[11] On 20 June 2024, more than three years later, the applicant addressed an e-mail to several officials of this Court requesting that the Judge President issue a directive in the matter as he had served the review application via e-mail as permitted by the new Rules of this Court[1], that he sought the third respondent’s consent to file the late filing of the review record, that as a poor litigant, he was struggling to prepare a complete review record, that rule 73 applies,[2] as well as section 165(2)[3]. He refers to watching the October 2023 Judicial Service Commission interviews with aspirant judges, during which the issue of the relationship between the CCMA and this Court regarding transcripts was addressed.

[12] The office of the Judge President requested my brother, Justice Lagrange, to manage the case.

[13] On 4 July 2024, Justice Lagrange addressed a letter to the office of the Judge President, with the applicant in copy, reporting that the applicant had not provided proof that the third respondent consented to the extension of the 60 days, nor did he apply to Court for an extension of the 60 days. The communication records that based on that, the review is deemed to have lapsed and cannot proceed further unless the applicant brings an application to reinstate it.

[14] On 5 July 2024, the attorneys for the third respondent wrote to the applicant about the review application filed in February 2021, which is deemed to be withdrawn, and that he could contact the Registrar regarding the reinstatement of the application.

[15] On 8 July 2024, the applicant filed a letter with the Court ‘appealing’ Justice Lagrange’s conclusion that his review had lapsed, contending that he sought the third respondent’s consent to extend the 60 days.

[16] On the same day, the third respondent’s attorneys filed a notice of appointment as attorneys of record.

[17] On 17 July 2024, Justice Lagrange issued another directive reiterating that the review is deemed withdrawn and that the

applicant must file an application substantiating why his review application is not deemed withdrawn and why it should be reinstated

if the Court finds that the review application was withdrawn. The Court directed the applicant to address these specific issues in his application:

17.1 The reasons he had not filed the transcript of the arbitration proceedings since the Registrar issued the last rule 7A(5) notice on 26 March 2021, including the steps he had taken to obtain the transcript and why those steps were unsuccessful. He was to set out his account in date order and give as much detail as possible.

17.2 When and why he believed he would be able to finalise his application if it is not deemed withdrawn or if it is reinstated.

17.3 The grounds on which he believes his review application will succeed.

17.4 Why he believes it is unfair to him if he is not allowed to proceed with his review application.

17.5 Why he believes it would be fair to the third respondent if he is allowed to proceed with his review application.

[18] The applicant filed the reinstatement application.

Applicant’s case

[19] The applicant submits that he is a layperson who is not well-versed in the law and the rules of this Court. He further submits that he sought the consent of the third respondent for the extension of 60 days and that he sent proof of service to the Court. He never received a directive from the Court that the review was ‘deemed’ withdrawn; therefore, the review is not withdrawn.

[20] He explained that he had not filed the transcript for good reasons. In 2020, he visited the Court for assistance, and the Labour Court Manager told him there was no budget for assisting litigants with transcripts. After he received the rule 7A(5) notice, he requested the third respondent to consent to the extension of the 60 days. Legal Aid and SASLAW refused his application for legal assistance. The Pro bono office did not respond to him. In the meantime, he was trying to get a job.

[21] He believes that he deserves a chance to be allowed to prosecute the review to completion based on what the Acting Deputy Judge President told the Judicial Service Commission (JSC) during his interview for the Judge President position that this Court and the Commission for Conciliation Mediation and Arbitration (CCMA) should collaborate on digitizing the arbitration proceedings to assist unemployed persons wanting to challenge CCMA awards. If his reinstatement application is refused, then this proves that justice is not for the poor; an injustice will be committed, and this will be unconstitutional.

[22] Not reinstating the review would benefit the municipality, which would have proved that what the applicant did was wrong, thereby preventing him from exercising his rights.

[23] The interests of justice dictate that the review application be reinstated, as no party will be prejudiced.

Third respondent’s answer

[24] The third respondent opposes the application. First, it contends that the applicant failed to prove service of the review application and that it only became aware of the review application on 25 June 2024 when the applicant requested to extend the 60 days for filing the review. Second, the applicant had not taken any steps to progress the review since the Registrar issued the rule 7A(5) notice dated 26 March 2021. Third, when the reinstatement application was filed, the applicant had still not filed the review record.

Analysis

[25] An application to reinstate a review application that is deemed withdrawn, has lapsed, and has been archived must satisfy the requirements for a condonation application. The applicant must show good cause for non-compliance with the rules to be condoned. A further consideration is that condonation is not for the mere asking.[4]

[26] The starting point is that acceptable proof of service did not accompany the review application in terms of the Rules of the Court that applied at the time. The applicant was advised on how to prove service, and the advice was ignored, with the applicant insisting that he had e-mailed the review application to e-mail addresses of the officials of the third respondent. The third respondent’s contention that it only became aware of the review application on 25 June 2024 has to be accepted. Even though the issue of whether there was proper service of the review application is now only of academic interest, it is apparent that the applicant refuses to accept advice freely provided to him.

[27] The issue of service of the review application aside, the last rule 7A(5) notice was issued on 26 March 2021. The review record ought to have been filed within 60 days of this date, and if this deadline could not be met, the applicant was required to seek the consent of the third respondent to file the record late. The applicant’s contention that he already sought such consent in February 2021 cannot be accepted for several reasons. He could not have sought consent to extend the period when he had not effected proper service of the review application. Second, he could not seek an extension of the 60 days before the Registrar issued the rule 7A(5) notice. Third, when a party does not consent to a request to extend the period or does not respond to a request for an extension, the party requesting the extension can apply to the Judge President. The applicant only sought the Judge President’s intervention three years later, when the review application was deemed withdrawn.

[28] If one accepts the applicant’s version that he sought consent to extend the 60 days as early as February 2021 because he did not have the funds to pay for a transcript, and after three and a half years, he still has not filed the record. It is not unreasonable to conclude that the applicant filed the review application knowing full well that he would not file the transcript.

[29] The Court accepts that on 25 June 2024, the applicant wrote to the third respondent seeking consent to extend the 60 days. However, as pointed out above, this was too late as the 60-day period had already lapsed, and the review application was deemed withdrawn. The applicant could not seek the third respondent’s consent to agree to the extension of 60 days in respect of a review application that was deemed to be withdrawn. That review application had also lapsed as contemplated in clause 11.2.7 of the Practice Manual, as the applicant failed to file all the review papers within 12 months of launching the application. The review application had also been archived as six months had lapsed without any steps being taken to progress the review application. The Practice Manual records these consequences, and there is no further requirement for the Court to issue a directive that the review is deemed to be withdrawn. Even though there is no requirement for the Court to issue a directive that the review application was deemed to be withdrawn, two directives were issued. Therefore, it is not correct, as submitted by the applicant, that his review application was not deemed withdrawn because the Court did not issue a directive to that effect.

[30] In any event, in his heads of argument, the applicant seemed to accept that the review was deemed withdrawn, and the issue that remains is whether it should be reinstated. I turn to that issue.

[31] In the directive of 17 July 2024, the applicant was provided with detailed guidance on what he was required to allege in his application for reinstatement.

[32] He was required to set out in detail and in date order what he had done since 26 March 2021 when the Registrar issued the rule 7A(5) notice. Despite this clear guidance, the affidavit filed by the applicant in support of the reinstatement application woefully falls short of this simple requirement.

[33] Instead of detailing what he had done to progress the review since March 2021, the applicant states that he is unemployed and does not have the funds to pay for the transcript. That explanation cannot assist him because he fails to set out his attempts, if any, to secure the funds to obtain the transcript. Without that information, the Court finds that the applicant did nothing to secure the funds to obtain the transcript.

[34] The applicant states that he approached Legal Aid for assistance and did not receive assistance. In his affidavit, the applicant does not state when he approached Legal Aid, but in the documents submitted to the Court after the matter was argued, it appears that the applicant approached Legal Aid in January 2021. His problem is that the arbitration award sought to be reviewed was issued on 12 February 2021. Did he approach Legal Aid anticipating an outcome against him? Or did the applicant approach Legal Aid for assistance with another matter other than the current matter? One does not know.

[35] Even though the applicant does not disclose this in his affidavit, Legal Aid declined to assist him because there were no prospects of succeeding with the review. Despite this advice, the applicant wants to continue with the review application.

[36] The applicant also states that SASLAW did not assist him but does not provide the reasons for being unable to assist him. In his argument, he submitted that he had been informed that the prospects of success were poor.

[37] Even after Legal Aid and SASLAW advised the applicant that his case lacked merit, he insisted on continuing it. In oral argument, he submitted that Legal Aid and SASLAW could not express such a view without the transcript. Whether a case has prospects of success is evident from the award and the grounds on which an applicant criticises that award.

[38] The Pro bono office is said not to have responded to the applicant’s communications seeking assistance. Did he attempt to telephone or visit the offices?

[39] The other requirement, per the July 2024 directive, was for the applicant to explain when and why he believes he can finalise the review if it is reinstated. The ‘when’ question has not been answered, other than the fleeting reference to what the Acting Judge President is alleged to have alluded to in his interview for the position of Judge President that this Court and the CCMA must collaborate and ensure that arbitration proceeding transcripts are automatically shared with this Court to assist unemployed applicants wishing to challenge awards. Assuming the Acting Judge President said what he is alleged to have said, this is of no assistance to the applicant's case to reinstate a withdrawn review application as it remains unknown if and when the collaboration referred to will see the light of day. Simply put, the applicant has no plan to place the transcript before this Court and relies on unknown external factors to file the transcript. In oral argument, the applicant submitted that he would type the transcript if the review application were reinstated. It has been over three years since the applicant received the CCMA CDs, and he did not transcribe the recordings. Reinstating the review application will be pointless as there is still no concrete plan to place the transcript before the Court and the applicant’s plan to type the transcript himself is a little too late.

[40] The applicant was also called upon to address the merits of his withdrawn review application if the Court were to reinstate it. There is nothing in the founding affidavit filed in the reinstatement application on the merits of the review application.

[41] In the replying affidavit, the applicant referred to a position he applied for and was shortlisted for in 2018. He states that the third respondent exploited him by treating him as an EPWP worker and that he was advised that the post that he applied for was frozen and would be re-advertised and that he was promised that he would be called. The applicant states that he seeks the relief of reinstatement because he was discriminated against and that the third respondent is wasting public funds by appointing attorneys to resist his claim when all he is doing is standing up for his rights. The applicant also alleges that the CCMA did not have jurisdiction to determine the matter in the absence of a ‘proper process.’ As these versions were raised for the first time in reply, the third respondent was not afforded an opportunity to respond to it.

[42] More importantly, the versions do not place the Court in a position to assess the applicant’s prospects of success in the review. For instance, if the CCMA had no jurisdiction to determine the dispute, on what basis is the applicant claiming reinstatement in the review proceedings as this Court would lack the jurisdiction to grant the relief sought?

[43] In oral argument, the third respondent’s counsel addressed the applicant’s prospects of success based on what is alleged in the review papers and submitted that even if the Court were to have regard to the review papers, the review application would be doomed to fail. That submission has merit. The applicant complains that the Commissioner refused to listen to a recording in which he was threatened to withdraw an unfair labour practice pending at the CCMA, that the arbitration commenced an hour late because the third respondent’s representative arrived late and did not apologise, that the post he applied was frozen without reasons and that there was nepotism in the recruitment process. Those contentions fall far short of what an applicant must allege to succeed with an application to review an arbitration award.

[44] The arbitrator remarked that the applicant’s claim was ‘a complete waste of time for all concerned…The referral is simply vexatious’. This conclusion cannot be faulted even if one has regard to the contents of the Court file.

[45] On why it would be unfair to him if his review application is not re-instated, the applicant submits that the third respondent would have succeeded in proving that what the applicant did was wrong. What did the applicant do? On the papers, the Court is none the wiser.

[46] The submission that if the application is dismissed, it will prove that there is no justice for the poor is sensationalist and does not deserve further consideration by the Court. Some organizations assist poor litigants with cases with prospects of success. In this case, the applicant had his case assessed by Legal Aid and SASLAW, and he was informed that it had no prospects of success. He did not accept the decision of Legal Aid and even appealed it. He also appealed against Justice Lagrange’s directive that the review was deemed withdrawn due to inaction on his part. The applicant will not accept any outcome other than the one to which he wrongly believes he is entitled.

[47] An application to reinstate a review application deemed to be withdrawn and has lapsed can only be granted if good cause is shown. Despite the guidance provided to him, which l have not seen in any other review files that l have dealt with involving individual litigants in review applications, the applicant failed to address the requirements that the Court directed him to address.

[48] Properly assessed, the facts show that the applicant filed the review application in February 2021 and failed to serve it on the third respondent in terms of the Rules for reasons that remain unknown to the Court. From March 2021 until June 2024, the applicant showed no interest in his review application and took no steps to progress it. When he eventually decided to pursue the matter, he sought preferential treatment by demanding that the matter be escalated to the Acting Judge President for attention. The Acting Judge President obliged and directed Justice Lagrange to manage the case. Justice Lagrange managed the case by advising the applicant on what he should do when it is not the Court’s duty to advise litigants in matters. The point is that the applicant received preferential treatment but, even then, still dismally failed to address the requirements for good cause.

[49] It has been three years since the applicant filed the review application. He has not progressed the review application during that period because he cannot afford to pay for the transcript and is waiting to see if and when this Court and the CCMA will collaborate on assisting unemployed individual litigants in placing transcripts before this Court. There are several litigants in the applicant’s situation. His case is worse because he does not explain what he did between March 2021 and June 2024 to find the funds to obtain a transcript. He does not explain why he must be treated differently from other litigants in a similar situation. He wants his review application to be reinstated and remain pending indefinitely. The expectation has no legal basis given that the Practice Manual applicable when the applicant filed his review application explicitly stipulated periods to be complied with regarding review applications failing which the specified consequences will ensue.

[50] In Samuels v Old Mutual Bank[5], the Labour Appeal Court pronounced that an application to reinstate a review application must be accompanied by a reasonable explanation

covering the entire period of the default, address prospects of success in the review application, and that it must be in the interests of justice to reinstate the review application. The current application does not meet a single one of these requirements. The applicant has failed to show good cause for the reinstatement of the withdrawn and lapsed review application and the application falls to be dismissed. The third respondent also has a right to finality. Dismissing the application does not amount to determining a matter based on technicalities as submitted by the applicant.

[51] For completeness, after the reinstatement application was argued, the applicant filed a purported urgent application for the suspension of the rule requiring transcripts to be filed in review applications. The applicant relies on Rule 8 of the Rules of this Court, which provides for condoning non-compliance with the rules and procedures on good cause shown. The rule relied upon deals with the form of documents to be filed in Court regarding typing, printing, spacing, font, and margins and does not condone a failure to file a transcript in review proceedings.

[52] This further urgent application borders on abusing the Court processes. He believes that he can send whatever application he wants to send to the Court whenever it suits him and expects the Court to entertain such applications outside of the procedures that apply to every other litigant in this Court. With this further application, the applicant wasted the Court’s limited resources, and he will be well advised that the Court frowns upon this manner of litigating.

[53] At the hearing of the matter, the third respondent’s counsel brought to the attention of the Court that the Garden Route Municipality had applied to have the applicant declared a vexatious litigant. In response, the applicant explained that the application was postponed because it was scheduled to be heard on the same day the reinstatement application was being argued. The applicant added that he has three to four pending cases against the Garden Route Municipality. Is there a pattern when it comes to the applicant and litigating? For purposes of this judgment, this is merely a rhetorical question.

[54] In the premise, I make the following order:

Order

1. The application to reinstate the review application is dismissed.

2. There is no order as to costs.

T. Gandidze

Acting Judge of the Labour Court of South Africa

Appearances:

The Applicant: In person For the Respondent: Instructed by: Advocate N Ristic Schroter Attorneys Inc

[1] The Rules came into effect on 17 July 2024.

[2] The Rules deals with media access to Court proceedings.

[3] Presumably of the Labour Relations Act No 66 of 1996, which section does not exist.

[4] Zono v Minister of Justice and Correctional Services; In Re: Minister of Justice and Correctional Services v Zono and Others [2020] 11 BLLR 1160 (LC).

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