NUMSA obo Mosikili and Others v Eskom Holdings Soc Ltd and Others (JR802/23) [2024] ZALCJHB 430 (12 November 2024)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR802/23

In the matter between:

NUMSA OBO ERIC MOSIKILI & 2 OTHERS Applicant and ESKOM HOLDINGS SOC LTD First Respondent COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION Second Respondent M.A. HAWKES, N.O. Third Respondent

Heard: 7 December 2023

Delivered: 12 November 2024

Summary: Review application –– Record not filed within 60 days and no condonation or reinstatement application filed. Review application deemed to be withdrawn.

JUDGMENT

ROODE, AJ

Introduction

[1] The Applicant seeks to review and set aside or correct a Jurisdictional Ruling issued by the Third Respondent (Commissioner)

on 3 April 2023 under the auspices of the Second Respondent (CCMA). In the Jurisdictional Ruling, the Commissioner found that the

Applicants’ referral amounts to alleged automatically unfair dismissals and that the CCMA does not have the jurisdiction to arbitrate the matter in the absence of consent by the First Respondent. The First Respondent did not consent to the jurisdiction

of the CCMA.

[2] The First Respondent did not oppose the application for review.

No record filed

[3] The Second Respondent dispatched the record to the Registrar and on 26 May 2023 the Registrar informed the Applicants by way of notice in terms of Rule 7A(5)[1] that the records have been delivered and can be collected within 7 days of the notice.

[4] Rule 7A(6) reads as follows:

‘The applicant must furnish the registrar and each of the other parties with a copy of the record or portion of the record, as the case may be, and a copy of the reasons filed by the person or body.’

[5] The serving and filing of the record in a review application is provided for in clause 11.2 of the 2013 Practice Manual of the Labour Court[2] (Practice Manual) as follows:

‘11.2.1 Once the registrar has notified an applicant in terms of Rule 7A(5) that a record has been received and may be uplifted, the applicant must collect the record within seven days.

11.2.2. For 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.

11.2.3. If the applicant fails to file a record within the prescribed period, the applicant will be deemed to have withdrawn the application, unless the applicant has during that period requested the respondent’s consent for an extension of time and consent has been given.’

[6] This Court and the Labour Appeal Court have considered the status of the Practice Manual[3] and held that in essence, the manual promotes uniformity and consistency in practice and procedure and sets guidelines on standards of conduct expected of those who practise and litigate in the Labour Court and it promotes the statutory imperative of expeditious dispute resolution. The provisions of the Practice Manual are binding and should be adhered to and it is not to be adhered to or ignored by parties at their convenience.

[7] Clauses 11.2.1 and 11.2.2 provide for the time frame within which the record should be filed and clause 11.2.3 sets out the steps to be followed and the consequences should an applicant fail to file the transcribed record within the prescribed period.

[8] The Applicants filed no record and on 27 October 2023, filed a notice in terms of Rule 7A(8)(b) standing by its grounds for review. No notice in terms of Rule 7A(6) was filed. No application for condonation or reinstatement of the review was filed.

[9] During the hearing of this matter, it was argued on behalf of the Applicants that there is no record and that it is a “habit”

of the CCMA to issue a notice to state that there is a record even where no such record exists. It was submitted on behalf of the

Applicants that the matter was decided “only on paper” and no recordings were made. These submissions are, in my view,

contradicting. The Rule 7A(5) notice confirmed that a record was indeed filed and it was then incumbent on the Applicants to have the record uplifted and prepared for the purposes of filing on both the Respondent and the Court. The Respondent’s rights to consider and possibly respond to the Applicant’s application is suffused with its right to have sight of the record of the proceedings under review. The Court similarly must consider all material available whether such material included any recordings that may have formed part of the record, the handwritten notes of the Commissioner and any documents that were presented during the arbitration proceedings, which culminated in the jurisdictional ruling of the Commissioner.

[10] I am inclined to believe that these documents and perhaps even handwritten notes of the Commissioner, would surely have been included in the record that was made available to the Registrar. The Court does not have to simply accept the Applicants’ submission that no recordings were kept by the Commissioner.

[11] In terms of Rule 7A(8)(b) the Applicants were required to file the said notice within 10 days after the registrar has made the record available. However, this was only done approximately 5 months after the Rule 7A(5) notice was issued. There has been no explanation offered for such delay.

[12] In Ralo v Transnet Port Terminals and others[4] the Court accepted the legal definition of ‘deemed’ as set out in the Namibian authority of Municipal Council of the Municipality of Windhoek v Marianna Esau (LCA 25/2009, 2 March 2010) where the Court held that the word ‘deemed’ is considered to have a conclusive effect[5]. This Court concluded by stating the following:

‘…The plain and unambiguous wording of the practice manual is to the effect that the applicant must be regarded as having withdrawn the review application.’

[13] In casu the same fate meets the Applicants and the status of the review application is withdrawn. In view of the fact that the review application is withdrawn, the relief sought by the Applicants cannot be granted.

[14] There is however no bar to the Applicants filing an application in which it seeks to have the review application reinstated.

Order

1. The Court does not have jurisdiction to entertain the review application as the review application is deemed to be withdrawn.

2. There is no order as to costs.

B.L. Roode

Acting Judge of the Labour Court of South Africa

Appearances

For the Applicants: Instructed by: Ms Lerato Lenyehelo Lenyehelo Attorneys On behalf of the Respondent: No appearance

[1] GN 1665 of 1996: Rules for the Conduct of Proceedings in the Labour Court, repealed with effect from July 2024.

[2] Practice Manual of the Labour Court of South Africa, effective 2 April 2013, repealed with effect from July 2024.

[3] Ralo v Transnet Port Terminals and Others [2015] ZALCPE 68; [2015] 12 BLLR 1239, Tadyn Trading CC t/a Tadyn Consulting Services v Steiner and Others [2016] ZALCJHB 42; (2014) 35 ILJ 1672 (LC), Samuels v Old Mutual Bank [2017] ZALAC 10; [2017] 7 BLLR 681 (LAC).

[4] Ralo v Transnet Port Terminals and Others [2015] ZALCPE 68; [2015] 12 BLLR 1239.

[5] Ralo at para 10.