NEHAWU obo Nkuna v South African Social Security Agency and Others (J 1516/2020) [2023] ZALCJHB 316 (9 November 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: J 1516/2020

In the matter between:

NEHAWU obo Y. A NKUNA

Applicants

and

SOUTH AFRICAN SOCIAL SECURITY AGENCY

First Respondent

COMMISSIONER PIET SHAI

Second Respondent

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION

Third Respondent

Heard: 31 October 2023

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email, publication on the Labour Court’s website. The date and time for hand-down is deemed to be on 09 November 2023.

JUDGMENT

TLHOTLHALEMAJE, J

[1] The applicants seek an order in terms of section 158(1)(c) of the Labour Relations Act[1] (LRA), to have an arbitration award dated 31 March 2019 made an order of Court. The arbitration award was issued by the

second respondent (Commissioner) acting under the auspices of the third respondent (CCMA), in which it was found that the first

respondent (SASSA), had committed an unfair labour practice against the applicant, (Mr Nkuna). The Commissioner ordered SASSA to pay to Nkuna, certain amounts in a form of cash bonuses.

[2] Following the arbitration award, SASSA had in or around September 2019, filed a review application under case number JR 746/19. A Notice in terms of Rule 7A(5) of the Rules of this Court was issued by the Registrar on 17 March 2020. SASSA uplifted the record on 23 March 2020. This was the last step that was taken by SASSA in prosecuting the review application.

[3] The review application since the last step taken, has acquired the status of being archived and regarded as lapsed in accordance with the provisions of clause 11.2.7 of the Practice Manual of this Court[2]. This had prompted the applicants to file an application in terms of section 158(1)(c) of the LRA in August 2021.

[4] In its answering affidavit, SASSA’s principal basis of that opposition was that making the arbitration award an order of Court would ‘send a wrong message to all its other employees, being that Courts can order organs of the state to act ultra vires’. This contention was further premised on alleged errors committed by the Commissioner in issuing the award in question.

[5] The Labour Appeal Court has on numerous occasions reiterated the circumstances under which this Court, in the exercise of its discretion, may make an arbitration award an order of court under section 158(1)(c) of the LRA[3]. The requirements are that (a) “the agreement or award is sufficiently clear to enable the defaulting party to know exactly what it should do to comply with it” and (b), “the defaulting party has failed to comply with the terms of the agreement or award”. Once these two requirements are met, this Court will then exercise its discretion as to whether such an order should be granted, taking into account “all relevant facts and circumstances” that are “necessary to satisfy the demands of law and fairness”.

[6] The relevant facts and circumstances of this case are that the applicants are in possession of a favourable arbitration award which is sufficiently clear to enable SASSA to know what was expected of it

in compliance with that award. Furthermore, it is not in dispute that SASSA has indeed failed to comply with the terms of that award. All that SASSA did upon receipt of that award was to file an application for review, which application has as the hearing of this matter, not gone anywhere in the sense that no further steps were taken in order to prosecute it despite the Rule 7A(5) Notice having been issued by the Registrar of this Court as far back as March 2020, and further despite a record having been uplifted.

[7] Clearly in the light of the above relevant facts, the review application has long been archived in accordance with the provisions of clause 11.2.7 read with Clause 16.1 and 16.3 of the Practice Manual[4], and which effectively implies that the application is as good as having been dismissed. SASSA being legally represented, was well

aware of what it ought to have done instead of merely filing an opposition to this application. Just to reiterate, in Samuels[5], it was held that in order for a file to be brought back to life, an interested party has to act in terms of clause 16.2, and lodge an application on affidavit for its revival, and on notice to all other parties to the dispute[6]. That legal position was recently reaffirmed in E Tradex (PTY) Ltd t/a Global Trade Solution v Finch and Others[7].

[8] In its answering affidavit filed in August 2021, and as further repeated in its submissions at the hearing of the matter, SASSA

relied on issues and contentions that ought to have been raised in the review application. Within the context of that answering

affidavit, SASSA sought to attribute the delays in prosecuting the review application on the alleged incomplete record of proceedings.

Even if there was substance to these allegations, given the fact that the record was uplifted in March 2020, it is not known as to the reason SASSA could not have sought an indulgence from the applicants or the Judge President of this Court as contemplated in clause 11.2.3 of the Practice Manual[8]. On its own version, it had obtained an indulgence from the applicants until 3 September 2021 to file an answering affidavit to this application, and there is no indication as to why a similar indulgence could not have been sought earlier in the light of the alleged ‘challenges’ it encountered in filing the transcribed record since March 2020 to date.

[9] Furthermore, in the answering affidavit filed in August 2021, SASSA averred that the review application ‘shall be prosecuted as soon as the CCMA provides the record’. As at the date of the hearing of this application, nothing had been done to get the review application anywhere near being finalised. Similarly, a number of events took place and steps were taken by the applicants which failed to jolt SASSA into any action in expediting the review. These

included the filing and service of an application for a set-down on 1 November 2021 by the applicants; the filing of their heads of argument; the Notice of set-down issued by the Registrar on 12 June 2023; and notice of confirmation of the set-down by the applicants served on SASSA on 17 October 2023.

[10] In the light of the clear dilatoriness on the part of SASSA in bringing the review application to finality, coupled with ignoring all of the Notices and reminders about what it ought to have done in reviving the review application, there is no basis upon which it can be said that it had always evinced an intention to bring that review to finality, let alone revive it upon it having acquired the status of being lapsed. It had an opportunity at the very least, from when the section 158(1)(c) of the LRA application was launched in August 2021, and refused to take any steps.

[11] The applicants as already stated are in possession of a favourable award since March 2019. SASSA’s conduct of being supine and uninterested in prosecuting the review since its filing clearly defeats the urgency with which such reviews ought to be dealt with. Such delays, have indeed been prejudicial to the applicants. If ever SASSA was to complain of any prejudice, this was clearly

self-inflicted. The Court is aware of the consequences of making the arbitration award an order of Court as succinctly set out by the LAC in Greater Taung[9]. In the light of SASSA’s disinterest in pursuing the review application since September 2019, and despite being aware of its lapsed status, it (SASSA), denied itself of an opportunity to bring a reinstatement application. The mere fact that SASSA had undertaken to pursue the review in its answering affidavit and yet did nothing since August 2021, clearly cannot be said that it had evinced any intention to bring an application to revive the review. It had countless opportunities to bring such an application, and it is my view that it did not need the applicant’s section 158(1)(c) of the LRA application or an order by this Court, to jolt it into any action

[12] Having taken regard of all of the facts outlined above and the circumstances of this case, coupled more particularly with a lack of interest on the part of SASSA to bring the review to finality, clearly the dictates of law and fairness, and more particularly fairness to the applicant, cannot be served by any further postponement of the application in terms of section 158(1)(c) of the LRA, or by granting SASSA any further opportunity to file the revival application. Accordingly, and in the light of all the factors mentioned, the dictates of law and fairness demand that the Court should exercise its discretion in favour of the applicant and grant them the relief that they seek.

[13] I further agree with the submissions made on behalf of the applicants that given SASSA’s dilatoriness and clear lack of interest in finalising the review, the opposition to this application was in bad faith, and it ought therefore be burdened with the applicants’ costs.

[14] Accordingly, the following order is made;

Order:

1. The arbitration award issued by the second respondent under case number LP5048/2018 is made an order of Court in terms of section 158(1)(c) of the Labour Relations Act.

2. The first respondent is ordered to pay the costs of the applicants’

application.

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

Appearance:

For the Applicants: Matome Mametja, of Mametja and Associates INC For the First Respondent: Adv. E N Gaisa, instructed by the State Attorney, Thohoyandou.

[1] Act 66 of 1995, as amended.

[2] Which provides: ‘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.’

[2] Which provides:

‘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.’

[3] See South African Post Office Ltd v CWU obo Permanent Part-Time Employees [2013] ZALAC 20; (2014) 35 ILJ 455 (LAC); [2013] 12 BLLR 1203 (LAC); PLSMIDTH Buffalo (Pty) Ltd v Hlakola [2018] ZALAC 40; (2019) 40 ILJ 527 (LAC); [2019] 4 BLLR 363 (LAC); Greater Taung Local Municipality v South African Local Government Bargaining Council and Others (2023) 44 ILJ 761 (LAC) at para 15.

[4] Clause 16.1 reads ‘In spite of any other provision in this manual, the Registrar will archive a file in the following circumstances: · in the case of an application in terms of Rule 7 or Rule 7A, when a period of six months has elapsed without any steps taken by the applicant from the date of filing the application, or the date of the last process filed; Clause 16.3 reads; ‘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.’

[4] Clause 16.1 reads

‘In spite of any other provision in this manual, the Registrar will archive a file in the following circumstances:

· in the case of an application in terms of Rule 7 or Rule 7A, when a period of six months has elapsed without any steps taken by the applicant from the date of filing the application, or the date of the last process filed;

Clause 16.3 reads;

‘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.’

[5] Samuels v Old Mutual Bank (2017) 38 ILJ 1790 (LAC) at para 4.

[6] Zono v Minister of Justice and Correctional Services in re: Minister of Justice and Correctional Services v Zono and Others [2020] ZALCJHB 215; [2020] 11 BLLR 1160 (LC) at para 9 (Zono); Macsteel Trading Wadeville v Van der Merwe N.O and others (2019) 40 ILJ 798 (LAC).

[7] [2022] ZALAC 106; (2022) 43 ILJ 2727 (LAC) (27 September 2022) at para 9, where it was stated; ‘The notion of a case being ‘archived’ was invented by the drafters of the Practice Manual as a penalty for dilatoriness and to relieve the burden of carrying dormant cases indefinitely. The consequence of a case being archived is serious. Upon archiving, in terms of clause 11.2.7, a matter is “…regarded as lapsed, unless good cause is shown why the application should not be archived or be removed from the archive”. To add to that provision, clause 16.3 states unequivocally that: “Where a file has been placed in the archives, it shall have the same consequences as to further conduct by any respondent party as to the matter having been dismissed” (own emphasis added). Moreover, clause 16.2 is equally unequivocal: “A party to a dispute in which the file has been archived may submit an application on affidavit, for the retrieval of the file…” There can be no plausible doubt that once the case is ‘archived’ it requires the intervention of the court to ‘un-archive’ it…’

[7] [2022] ZALAC 106; (2022) 43 ILJ 2727 (LAC) (27 September 2022) at para 9, where it was stated;

‘The notion of a case being ‘archived’ was invented by the drafters of the Practice Manual as a penalty for dilatoriness and to relieve the burden of carrying dormant cases indefinitely. The consequence of a case being archived is serious. Upon archiving, in terms of clause 11.2.7, a matter is “…regarded as lapsed, unless good cause is shown why the application should not be archived or be removed from the archive”. To add to that provision, clause 16.3 states unequivocally that: “Where a file has been placed in the archives, it shall have the same consequences as to further conduct by any respondent party as to the matter having been dismissed” (own emphasis added). Moreover, clause 16.2 is equally unequivocal: “A party to a dispute in which the file has been archived may submit an application on affidavit, for the retrieval of the file…” There can be no plausible doubt that once the case is ‘archived’ it requires the intervention of the court to ‘un-archive’ it…’

[8] Which provides; ‘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.’

[8] Which provides;

‘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.’

[9] At para 17