NUMSA obo Dlamini v Commission for Conciliation, Mediation and Arbitration and Others (JR453/15) [2018] ZALCJHB 27 (6 February 2018)
The applicant failed to take any active steps to prosecute its review application for an excessive period, far exceeding the timeframes set out in the Practice Manual. The record was not filed within the required period, and the review application was deemed withdrawn as of February 2016. The third respondent placed...
Source-derived case information.
- Citation
- [2018] ZALCJHB 27
- Parties
- Applicant: NUMSA obo Innocent Vusi Dlamini; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Sello Maphaki N.O.; Respondent: Eskom Holdings (SOC) Ltd (Lethabo)
- Court
- Labour Court Johannesburg
- Jurisdiction
- South Africa
- Case Number
- JR453/15
- Procedural Posture
- Review Application / Rule 11 Application to Dismiss Review
- Outcome
- The Rule 11 application is granted and the applicant's review application is dismissed.
- Judges
- B Whitcher
- Legal Topics
- Review Application, Practice Manual Compliance, Rule 11 Application, Deemed Withdrawal
Source-derived case record
Summary, issues, holding and outcome
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Parties
NUMSA obo Innocent Vusi Dlamini
Applicant
Commission for Conciliation, Mediation and Arbitration
Respondent
Sello Maphaki N.O.
Respondent
Eskom Holdings (SOC) Ltd (Lethabo)
Respondent
Procedural Posture
Review Application / Rule 11 Application to Dismiss Review
Legal Issues
- 1 Whether the applicant failed to prosecute the review application within the timeframes set by the Practice Manual.
- 2 Whether the review application should be deemed withdrawn and dismissed under clause 11.2.3 of the Practice Manual.
- 3 Whether the third respondent's Rule 11 application to dismiss the review should be granted.
Ratio Decidendi
The applicant failed to take any active steps to prosecute its review application for an excessive period, far exceeding the timeframes set out in the Practice Manual. The record was not filed within the required period, and the review application was deemed withdrawn as of February 2016. The third respondent placed the applicant on terms and warned of a Rule 11 application, but the applicant did not respond. The court found that the delay was unjustifiable and that the applicant had dismally failed to comply with its obligations. Accordingly, the Rule 11 application was granted and the review application dismissed.
Court Disposition
The Rule 11 application is granted and the applicant's review application is dismissed.
Orders
- The Rule 11 application is granted.
- The review application filed on 18 March 2015 by the applicant, NUMSA, is dismissed.
Full Case Text
Judgment text and source record
42 paragraphs
IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JR 453-15
Not Reportable
In the matter between:
NUMSA obo INNOCENT VUSI DLAMINI
Applicant
and
COMMISSION FOR CONCILIATION MEDIATION
AND ARBITRATION
First Respondent
SELLO MAPHAKI N. O
Second Respondent
ESKOM HOLDINGS (SOC) LTD (LETHABO)
Third Respondent
Heard: 6 February 2018
Delivered: 6 February 2018
EX TEMPORE JUDGMENT
WHITCHER, J:
[1] This is a Rule 11 application by the third respondent to dismiss the review application filed by applicant, the National Union of
Metalworkers of South Africa (NUMSA). For the reasons that follow the application is granted.
[2] The rule 11 application was filed on 21 November 2017. The review application was filed more than two years ago, on 18 March 2015. The Commission Conciliation Mediation and Arbitration (CCMA) filed the Rule 7A (3) in relation to the record two years ago, on
25 November 2015.
[3] In terms of clause 11.2.2 of the Practice Manual, the applicant ought to have filed the record by 25 January 2016, that is, more than 19 months ago.
[4] In terms of the failure to do so and clause 11.2.3 of the Practice Manual, the review application is deemed to have been withdrawn on or about February 2016, that is 10 months ago.
[5] On or about 13 and 28 September 2017, the third respondent placed the applicant on terms regarding the review and essentially warned them that a rule 11 application could be anticipated. There was no meaningful response to same.
Conclusion
[6] The applicant dismally failed to take active steps to prosecute its review application and the delay is excessive.
Order
[7] In the premises, the following order is made:
1. The Rule 11 application is granted.
2. The review application filed on 18 March 2015 by the applicant, NUMSA is dismissed.
3. There is no order as to costs.
__________________________
B. Whitcher
Judge of the Labour Court of South Africa
APPEARANCES:
For the third respondent:
Adv. P.M.W Botha
Instructed by:
Moshoana Mabena Mogane Inc
For the applicant:
No appearance