Ngaphi v South African Local Government Bargaining Council and Others (PR01/18) [2022] ZALCPE 8 (14 June 2022)

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IN THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA

Not Reportable

Case NO: PR01/18

In the matter between:

MZWABANTU NGAPHI

Applicant

and

SOUTH AFRICAN LOCAL GOVERNMENT

BARGAINING COUNCIL

First Respondent

NTOMEKHAY SESANI N.O

Second Respondent

NELSON MANDELA BAY MUNICIPALITY

Third Respondent

Heard: 24 November 2022

Delivered: This judgment was handed down electronically by circulation to the Applicant's and First Respondent's Legal Representative by email, publication on the Labour Court website and release to SAFLII. The date and time for handing - down is deemed to be 15h00 on 14 June 2022.

JUDGMENT

LALLIE J

[1] This is an application to retrieve the applicant's file form the archives and revive his review application. The application is opposed by the third respondent.

[2] The facts relevant to this matter are that the applicant was employed by the third respondent as a data capturer. He was dismissed for misconduct on 3 June 2016. Subsequent thereto he referred an unfair dismissal dispute to the first respondent which, in an arbitration award issued under its auspices by the second respondent, found the dismissal fair. The award was issued on 19 November 2017. On 2 January 2018, the applicant launched an application in terms of section 145 of the Labour Relations Act[1] (the LRA) seeking an order reviewing and setting the award aside. On 18 January 2018, the registrar notified the applicant and the third respondent of the availability of the record of the impugned arbitration proceedings (the record). In the same notice she advised them of the provisions of clause 11.2.1, 11.2.2 and 11.2.3 of the Practice Manual of the Labour Court (the Practice Manual). The essence of clause 11 of the Practice Manual is that because of the urgent nature of the review proceedings, the applicant is required to file the record within 60 days of being notified by the registrar of its availability failing which the review application would be deemed to have been withdrawn by the applicant and archived. The applicant failed to file the record. He consequently filed the application at hand on 18 December 2020 to have his review application retrieved form the archives and reinstated.

[3] It was argued on behalf of the applicant that the application should be granted because he has shown good cause to have his non-compliance with clause 11 of the Practice Manual condoned. It was further argued, correctly that the reinstatement application is akin to a condonation application.Reliance was made to, inter alia, on the following dictum in Samuels v Old Mutual Bank[2]

'In essence, an application for the retrieval of a file from the archives is a form of an application for condonation for failure to comply with the court rules, time frames and directives. Showing good cause demands that the application be

bona fide; that the Applicant provide a reasonable explanation which covers the entire period of the default; and show that he/she has reasonable prospects of success in the main application, and lastly, that it is in the interest of justice to grant the order. It has to be noted that it is not a requirement that the Applicant must deal fully with the merits of the dispute to establish reasonable prospects of success. It is sufficient to set out facts which, if established, would result in his/her success. In the end, the decision to grant or refuse condonation is a discretion to be exercised by the court hearing the application which must be judiciously exercised.'

[4] It was argued that this application is bona fide because the applicant who has been without employment from 2016 seeks to have the review application he brought in good faith ventilated. The explanation for the delay is that the . applicant depended on his trade union, SAWU for funding the prosecution of the review application. He then became a victim of SAMWU's excessive delay in giving its attorneys financial instructions. As he was unemployed was unable to finance the review application. The delay, in his view, was beyond his control.

[5] I have taken into account all the submissions made on behalf of both parties. I accept the third respondent's version that the applicant has failed to provide sufficient facts proving that his delay in filing the record should be condoned. He did not prove reasonable prospects of success in the review application. The applicant failed to make averments which, if proved, wouId lead to the success of his review application. The test" for review is reasonableness. The applicant made no valid averments attacking the reasonableness of the arbitration award. He relied on irregularities which were allegedly committed by the chairperson of his disciplinary enquiry.

[6] The extent of the delay on its own does not constitute valid grounds for the refusal of a reinstatement application. However, its explanation plays a vital role in determining whether the applicant has shown good cause to have the delay excused. The respondents argued, correctly, that the applicant sought to rely on the inordinate delay by his trade union, SAMWU, in paying its attorneys to prosecute his review application. The applicant further does not disclose when SAMWU gave its attorneys instructions to prosecute his review and paid her for her professional services. In the absence of how the lack of financial instructions resulted in the inordinate delay, it cannot assist the applicant in this application.

[7] The applicant was notified by the registrar of the availability of a further portion of the record on 1 March 2018. His attorneys advised SAMWU that the record should be filed with 60 days from that date. They were further aware of the consequences of the non-compliance with the 60 day period and the procedures to be followed to prevent the review application from lapsing or being deemed withdrawn. When SAMWU's attorneys received a fresh mandate to pursue the applicant's review application they failed to give his case priority notwithstanding that the record should have been filed in 2018. The applicant provided no reason why he should be allowed to hide behind the failure of his trade union and its attorneys to file the record on time The applicant failed to provided a reasonable explanation for the excessive delay of over two years in filing the record.

[8] The applicant was dismissed in 2016 and filed his review in 2018. The applicant's right to be heard has to be weight against the third respondent's right to have the review application finalized within reasonable time. The applicant and his union sat on his right to review. The delay in filing the record which exceeds 2 years justifies the third respondent's conduct of drawing the inference that the applicant had lost interest in the review application. The third respondent has a municipality to run and should not be hamstrung from continuing with its business by the applicant's unreasonable delay. The applicant failed to provide a reasonable explanation for the years' delay in filing the record. He also failed to establish prospects of success in the review application. He gave no reason to have his non-compliance excused. Reinstating the review application is therefore not in the interests of justice.

[9] I could find no reason in fairness to grant a costs order against the applicant.

[10] In the premises, the following order is made:

Order:

[1] The application for the reinstatement of the review

[2] There is no order as to costs.

Z. Lallie

Judge of the Labour Court of South Africa

Appearances

For the Applicant: Ms O.T. Olowookorun of Bukky Olowookorun Attorneys Inc. For the Third Respondent: Advocate L. Voultsos

Instructed by Gray Moodliar Inc

[1] Act 66 of 1995, as amended

[2] [2017] 7 BLLR 681 (LAC) at para 17.