Ngqakase v Bendeman and Another (C241/2018) [2021] ZALCCT 55 (23 July 2021)

THE LABOUR COURT OF SOUTH AFRICA,

HELD

AT CAPE TOWN

Not reportable

Case no: C241/2018

In the matter between:

THEMINKOSI

ANTON NGQAKASE Applicant

and

H BENDEMAN First

Respondent

D&E

REINFORCING PTY (LTD) Second

Respondent

Date of Hearing: 1 July 2021

Date of Judgment: 23 July 2021

This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and released to SAFLII. The date and time for handing down judgment is deemed to be 10h00 on 23 July 2021.

Summary: (Review Application – delay of more than 2 years before the applicant delivered the record. Non-compliance with section 145(5) of the Labour Relations Act 66 of 1995 and clauses 11.2.2 and 11.2.3 of the Labour Court Practice Manual. In terms of clause 11.2.3 of the Practice Manual – if applicant fails to file the record within the prescribed time period, without consent or extension of time by the Judge President, the applicant will be deemed to have withdrawn the application. No attempt by the applicant to obtain an extension of time within which to deliver the record. The matter is accordingly deemed withdrawn in terms of clause 11.2.3 of the Practice Manual.)

JUDGMENT

JORGE AJ

Introduction

[1] This application was enrolled for a hearing using MS Teams at 11:00 on 1 July 2021. The applicant appeared in the hearing using a computer made available at the labour court by the court manager. The Second Respondent was represented by its operations manager Mr Richard Loots.

[2] It became apparent during the proceedings that the applicant required the assistance of an interpreter. The matter was accordingly postponed to 2 July 2021 to allow the court manager to obtain the services of an interpreter to assist the Applicant.

Chronology of the review application

[3] The applicant delivered his review application to the registrar of the labour court on 28 March 2018.

[4] On 22 June 2018 the registrar notified the applicant that the record had been received.

[5] On 28 June 2018 the applicant uplifted the record of proceedings. After this date there is a long delay of more than two years before the applicant delivered any documents or pleadings to the Court.

[6] From a perusal of the court file it is apparent that a transcription service, Accurate Transcribers, issued a certificate of authenticity dated 7 August 2020. The certificate records that the transcript of the audio recording of the arbitration hearing was completed on 25 August 2019.

[7] On 9 September 2020 the applicant filed the record and his notice in terms of Rule 7A [8] [b] with the labour court.

[8] On 21 September 2020 the second respondent filed its notice of opposition and answering affidavit. In its answering affidavit the second respondent raises as preliminary point the applicant's non-compliance with section 145(5) of the Labour Relations Act 66 of 1995 and clauses11.2.2 and 11.2.3 of the Practice Manual of the Labour Court of South Africa.

This application

[9] Before this review application can be considered by the court the difficulties raised by the second respondent must be addressed.

[10] The applicant delivered the record and the Rule 7A [8] [b] notice more than two years after he uplifted the record. There is no explanation for this delay. It is clear that the applicant did not comply with clause 11.2.2 of the practice manual, which records that:

‘For the purposes of Rule 7A (6), records must be filed within 60 days of the date on which the applicant is advised by the registrar that the record has been received.’

[11] Clause 11.2.3 of the practice manual, records that:

‘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.’

[12] On the fact before this court there was no attempt by the applicant to obtain an extension of time within which to deliver the record. The matter is accordingly deemed withdrawn in terms of clause 11.2.3 of the practice manual. There is no application before the court to consider unless the applicant successfully applies for the reinstatement of the review application.

[13] Furthermore, the review application is regarded as lapsed in terms of clause 11.2.7 of the practice manual, which records:

‘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.’

[14] In terms of clause 11.2.7 of the practice manual, an application which has lapsed can only be reinstated if the applicant shows good cause why it should not remain archived.

[15] The current status of the review application is therefore that it has lapsed. In the circumstances, this matter should not have been enrolled for hearing in the absence of the applicant bringing an application supported by an affidavit in which he shows good cause for reinstating his review application.

[16] In view of the above the following order is made:

Order

[1] The review application is deemed withdrawn in terms of clause 11.2.3 of the labour court practice manual and has lapsed in terms of clause 11.2.7 of the practice manual;

[2] The registrar must archive the file;

[3] The application is struck off the roll, and may not be reinstated until such time as the applicant is successful in applying to have the application retrieved from the archive and reinstated.

[4] No order is made as to costs.

Jorge AJ

Acting Judge of the Labour Court of South Africa

Appearance:

For the Applicant: In

person

For the Second Respondent: Richard Loots