NEHAWU obo Molebatsi v Performing Arts Centre of Free State (PACOFS) and Others (C398/2021) [2023] ZALCJHB 221 (13 July 2023)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

NOT REPORTABLE

CASE NO: C398/2021

In the matter between: NEHAWU obo MOLEBATSI Applicant And PERFORMING ARTS CENTRE OF FREE STATE (pacofs) First Respondent MTUNZI NDULAMA Second Respondent COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION (CCMA) Third Respondent

Heard: 27 June 2023

Date of Judgment: This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing down judgment is deemed to be 10h00 on 13 July 2023

JUDGMENT

WHYTE, AJ

Introduction

[1] This matters concerns an application brought by the applicant in which it seeks, in terms of Rule 11, the dismissal of the first respondent’s application for review and set aside, together with an order, in terms of section 158(1)(c) of the Labour Relations Act, 1995 (“the LRA”), to have the underlying arbitration award made an order of court. I shall refer to it as “the dismissal application”.

[2] As shall appear more fully below, the first respondent has itself launched an application in terms of Rule 11 for the extension of the 60-day time period introduced by clause 11.2.2 of the Practice Manual for the filing of the record on review (I refer to it as “the extension application”). This application was not before me, and despite my suggestion that the parties consider a possible consolidation of the proceedings, the applicant requested that I proceed with the matter as allocated to the roll. I am obliged to do so.

[3] I do however note that the extension application has, to a certain extent, been incorporated into the parties’ written and oral argument and I am thus equally obliged to have regard to its existence, without deciding its merits.

Background

[4] The Constitutional Court[1] has now on numerous occasions stressed the need for expedition in labour disputes. Despite this, it is regrettable that this Court is repeatedly seized by matters in which the parties have not complied with the Rules or this Court’s consolidated Practice Manual and thereby contribute to the growing backlog of matters requiring resolution.

[5] This is particularly so in respect of applications for review and the seeming inability of parties to timeously file a record, or to take simple collegial steps in ensuring that a record is produced.

[6] Whilst the and Practice Manual has introduced measures to ensure that matters become ‘archived’ or ‘withdrawn’, these frequently simply allow applications to remain in a state of litigation limbo. This is such a matter.

[7] It is necessary to set out in a fair level of detail the unfortunate history to this matter.

[8] On 6 November 2020, the second respondent handed down an arbitration award in which he found that the applicant’s member (Mr Molebatsi) was substantively unfair and that he should be reinstated into the first respondent’s employ.

[9] Dissatisfied with the outcome, first respondent applied for the review and set aside of the award. It did so by filing an application for review and set aside on 3 August 2021. Self-evidently, this application was late, however condonation was sought.

[10] On 7 September 2021, the third respondent filed the record and, on the same day, the audio recording was uplifted by the first respondent.

[11] It transpired that the transcript prepared from the audio recording revealed that certain portions of the evidence were missing, and on 9 November 2021, the first respondent’s attorney corresponded with the applicant, requesting that it agree to an extension of the mandated time frame. The following day, the applicant agreed, although no time frame was set as to when this agreement would end.

[12] I pause here to note that during oral argument, both parties’ representatives readily agreed that there was an agreement to the extension of the time frame imposed by the Practice Manual in the manner contemplated by clause 11.2.3. The applicant’s case was rather that the first respondent had simply proceeded to do nothing and accordingly that its agreement to the extension had come to an end on 22 December 2022 when it filed the application before me.

[13] Even if one does have regard to the first respondent’s extension application, it seems that very little was done to produce an improved record. Equally, there do not appear to have been any steps taken by the applicant to follow the matter up in a constructive fashion or to at least enquire into the progress being made by the first respondent in filing the record.

[14] On 24 March 2022, the first respondent filed its application for an extension of the mandatory time limit. This application has not been opposed, and for reasons that remain unclear has not been set down for hearing or placed before a Judge sitting in chambers.

[15] Dissatisfied with the delays in the prosecution of the mater, the applicant filed its dismissal application on 22 December 2022, this being the application now before me. The first respondent filed an answering affidavit on 26 January 2023. This answering affidavit is late and, on 27 January 2023, the applicant objected to that late filing in the manner contemplated by clause 11.4.2 of the Practice Manual. Accordingly, the answering affidavit is not before the Court, and the matter must proceed in the absence of the facts set out therein.

The status of the review application

[16] Clause 11.2.3 of the Practice Manual provides as follows:

“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.”

[17] The review application was at least ‘alive’ (i.e. in the sense that it had not become a deemed withdrawn one) until 22 December 2022 when the applicant filed the dismissal application. The filing of this application essentially brought an end to the agreement that had been extended to the first respondent in respect of the filing of the record on 10 November 2021. This agreement was one contemplated by the first part of clause 11.2.3.

[18] However, and as noted above, the extension application had been filed in the interim (i.e. on 24 March 2022). It seems to me that this was an application contemplated by the second part of clause 11.2.3. However, even if I am wrong, the application contemplated the reinstatement of the review application to the extent that it had become a deemed withdrawn one.

[19] In the premises, and until such time as the extension application has been determined, the dismissal application would be premature or would, at the very least, need to be considered in the light of the extension application as part of this Court’s judicial discretion over dismissal applications generally.

[20] This however leaves unanswered the plight of the review application itself, not to mention the plight of Molebatsi whose life is no doubt rendered uncertain by the failure of the opposing parties to come to a sensible arrangement regarding the filing of the record.

[21] I am inclined to agree, without deciding the issue, that this Court does have an inherent power to order the dismissal of an application.[2] This power must however be exercised cautiously and not in circumstances where the court itself may have been a source of the delays in question. In this regard it seems that the extension application ought to have been placed before a Judge in chambers and it is unclear why this did not take place.

[22] In the premises I intend to make an order removing the dismissal application from the roll and directing that the file be placed before a Judge in chamber as contemplated by the last part of clause 11.2.3 of the Practice Manual. This will at least bring certainty to the parties in how the review application is to proceed.

[23] I would however strongly encourage the parties, in the interim, to take steps to reconstruct the record. The duty to provide the court with a complete record rests with both of the parties.

Order

1. The applicant’s application in terms of Rule 11 and section 158(1)(c) of the LRA is removed from the roll;

2. The Registrar is directed to refer this matter to the Judge President in order to place the file before a Judge in chambers such

that a ruling, as contemplated by clause 11.2.3 of the Practice Manual, can be made.

3. There is no order as to costs.

J Whyte

Acting Judge of the Labour Court of South Africa

Appearances For the Applicant: Mr M Maraka An official of: NEHAWU For the Respondent: Mr T du Preez Instructed by: Kramer Weihmann Inc.

[1] For example, Steenkamp and Others v Edcon Limited (2019) 40 ILJ 1731 (CC) (30 April 2019)

[2] Toyota SA Motors (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others [2016] 3 BLLR 217 (CC). Sishuba v National Commissioner of SAPS [2007] 10 BLLR 988 (LC); Autopax Passenger Services (Pty) Ltd v Transnet Bargaining Council & others [2007] 1 BLLR 39 (LC); Department of Housing & Local Government, Limpopo Province v GPSSBC & others [2011] 8 BLLR 742 (LC).