Overnight Logistics (Pty) Ltd v National Bargaining Council For Road Freight and Logistics Industry and Others (JR12/16) [2024] ZALCJHB 375 (23 September 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no: J12/2017

In the matter between:

OVERNIGHT LOGISTICS (PTY) LTD Applicant And NATIONAL BARGAINING COUNCIL FOR THE ROAD FREIGHT AND LOGISTICS INDUSTRY First Respondent MBILENI, CHRIS SIZILI N.O. Second Respondent JOSEPH DAYILE Third Respondent

Heard: 8 August 2024

Delivered: 23 September 2024

JUDGMENT

DAVE, AJ

Introduction

[1] This is an application to revive the Applicant’s review application (revival application) that was filed in terms of section 145 of the Labour Relations Act[1] (LRA) to review and set aside an arbitration award issued by the Second Respondent under case number GPRFBC33274 (‘the review

application’). The review application, which is deemed to be withdrawn by virtue of item 11.2.3 of the Labour Court Practice

Manual (“Manual”) and archived by virtue of item 11.2.7 of the Manual, was launched by the Applicant in January 2016, more than 9 years ago.

[2] Although a notice of intention to oppose the Applicant’s revival application was filed, no opposing papers were filed by the Third Respondent. There was however an appearance on behalf of the Third Respondent, by Mr Ntshaba, at the hearing of this matter.

[3] There are a number of applications in this matter, however the primary issue to be determined is the Applicant’s revival application. The success or failure of the revival application will determine the next steps in this matter.

Other applications

[4] The other applications in this matter are:

4.1 An application by the Third Respondent filed in October 2017 to dismiss the Applicant’s review application;

4.2 An application filed on 7 September 2023 by the Applicant to stay the arbitration award and for the Applicant to be absolved from furnishing security, alternatively to furnish no more than six months’ remuneration of the Third Respondent;

4.3 An application by the Applicant in February 2024 to compel the Third Respondent to file his answering affidavit to the Applicant’s review application pursuant to a directive issued by Judge Tlhotlhalemaje, dated 29 January 2019.

Background and the events leading to this application

[5] The unfortunate sequence of events, which are set out below, is what has plagued this matter over the years and which has resulted in the unnecessary and unacceptable delay in the matter being finally determined. What emerges from the various applications in this matter is what seems to be an apathetic attitude by the Applicant and its attorneys in prosecuting its review application. This will become more evident below. The Applicant however blames the delay on factors beyond its control and on the Court system. On a careful scrutiny, save for waiting for a set down date, this is not the case.

[6] The sequence referred to above is, in summary, the following:

6.1 Pursuant to the Applicant filing its review application on 11 January 2016 (in respect of an arbitration award issued on 14 November 2015) the CD recording of the arbitration hearing was filed by the First Respondent on 26 January 2016. However, the Applicant’s attorney alleges that he did not receive the notice of the filing of the record;

6.2 It was only upon the Applicant’s attorney’s attendance at Court sometime in 2016, that the Applicant became aware of the filing of the CD and uplifted the notice of compliance. The date of this attendance is not stated in the Applicant’s reinstatement application;

6.3 According to the Applicant, the transcript was completed by the transcribers, however it appears that it was not the full transcript that was completed;

6.4 It is not clear from the papers when the Applicant’s attorneys actually uplifted the record from Court but for the assertion that it was done when the final balance of the transcription fee was paid, which was on or about 9 November 2016. By this time, the 60 day period to file the record had already expired and there was no request by the Applicant for an extension of time in terms of item 11.2.3 of the Manual;

6.5 On 19 January 2017, some two and a half months after uplifting the transcript from Court, the Applicant’s attorney addressed a letter to the Third Respondent informing the Third Respondent that the Applicant was in receipt of the full transcript and was willing to make the transcript available to the Third Respondent provided the Third Respondent paid the Applicant’s attorney the sum of R973 for the costs of the copies of the transcript. The Applicant’s attorney did not receive a response from the Third Respondent. The aforesaid letter is ambiguous in that it is not clear whether the transcript referred to by the Applicant’s attorneys was the transcript relating to the present matter or another matter between the Applicant and SATAWU.

Regardless thereof, the Applicant followed a course not provided for in the Rules of this Court by insisting on payment for the copies of the transcript before serving it;

6.6 On 16 August 2017, the Third Respondent filed a notice of intention to oppose the review application and on 3 October 2017, some eight months since the attorneys letter, the Third Respondent filed an application to dismiss the Applicant’s review application. At this stage the Applicant had still not served the record. The Third Respondent, in its application to dismiss the review application,

complained that since the filing of the record, by the First Respondent, the Applicant had not taken any steps to prosecute the

review application and that the Applicant had failed to provide it with the record of the arbitration proceedings or a notice in terms of rule 7A (8) of the Rules for the Conduct of Proceedings in the Labour Court (1996 Rules). The application to dismiss was opposed by the Applicant;

6.7 On 7 February 2018, around 14 months after the Applicant uplifted the record, the Applicant filed its supplementary affidavit in its review application. The Applicant filed the record at Court but failed to serve it on any other party. The Applicant’s explanation for filing its supplementary affidavit 14 months after uplifting the record have no merit. In fact, the Applicant has the temerity to blame the Third Respondent for not collecting the record and the Labour Court for not notifying it of the record being filed at Court after launching its review application.

6.8 The Applicant then filed heads of argument in the review application on 4 May 2018 averring that this was a sign of it being proactive as no directive to file heads had, at that stage, been issued.

6.9 On 29 January 2019, as mentioned earlier, a directive was issued by Judge Tlhotlhalemaje. In terms of the directive, the Applicant had filed the record and a supplementary affidavit and directed that the Third Respondent file its answering affidavit together with an application for condonation in respect of the late filing of the answering affidavit.

6.10 However, the record had still not been served on the Third Respondent. The Applicant seemed to ignore the fact that the Third Respondent cannot file an answering affidavit without the record. This fact (i.e. that the record was yet to be served on the Third

Respondent) was never brought to the attention of the Registrar. Despite this, on 8 February 2024, the Applicant filed an application

to compel the Third Respondent to file its answering affidavit to the review application. The application to compel was brought by the Applicant five years after the aforesaid directive was issued. In the Applicant’s application to compel, the Applicant sets out various steps that were taken to move the matter forward. In considering these explanations, a number of lengthy gaps in the periods are left unexplained.

The delay

[7] As mentioned, over nine years have passed since the Applicant’s review application was delivered. I accept that the delay in waiting for a set down date is not the Applicant’s doing.

[8] However, the Applicant filed its supplementary affidavit and the record at Court on 7 February 2018, over two years after its review

application was filed. The Applicant, on its own version, was in possession of the record from November 2016 but only delivered its supplementary affidavit on 7 February 2018.

[9] The Applicant attempts to explain why the supplementary affidavit and the record was filed outside of the prescribed time period. The Applicant’s explanation is the following:

9.1 The Applicant was unaware that the record was available due to the First Respondent failing to properly serve the notice of compliance

on the Applicant. However, what the Applicant fails to mention is the fact that, according to the Applicant, it uplifted the record on 9 November 2016. There is no explanation for the delay between 9 November 2016 and the date of filing the supplementary affidavit (and the record) at Court on 7 February 2018.

9.2 The Registrar’s inaction in not notifying the Applicant that the record had been received and uplifted. This explanation falls flat in light of the fact that the Applicant uplifted the record on 9 November 2016.

9.3 The Third Respondent’s ‘complete’ silence’ upon being notified of the availability of the transcript. This

explanation also falls flat as the Third Respondent is not required to collect the record from the Applicant’s attorneys. The Applicant is obliged in terms of the 1996 Rules to serve the record on the Respondents.

9.4 The significant length and complexity of the arbitration hearing transcript. This is hardly an explanation for the delay with nothing

being done to deliver the record and the supplementary affidavit from the time the transcript was uplifted.

9.5 The prejudice caused by the Registrar and Third Respondent’s inactions. The alleged inaction on the part of the Third Respondent

is misplaced as the Third Respondent was never obliged to collect the record from the Applicant’s attorneys and the blame placed on the Registrar’s alleged inaction is not an acceptable explanation for the delay.

9.6 The steps that were taken by the Applicant’s attorneys. Whatever steps were taken, which do not, in my view, constitute “proactive steps’, pale away against the passing of a period of 14 months.

9.7 After filing its supplementary affidavit, the Applicant filed its heads of argument in May 2018. The fact that the Applicant files its heads of argument does not assist the Applicant. The Applicant makes some reference to Covid-19 and that the Court re-opened in January 2022. It appears however, that steps were only then taken by the Applicant’s attorneys to have the matter set down.

[10] On 7 September 2023, the Applicant filed an application to have the arbitration award stayed and to be absolved from furnishing security.

Evaluation

[11] During submissions, Mr Moodley, appearing for the Applicant, confirmed that the record, as of the date of the hearing of this matter, had still not been served on the Third Respondent. Mr Moodley seemed perplexed as to why it is that the Third Respondent

could not be expected to file an answering affidavit to the Applicant’s review application in circumstances where the record had not been served on the Third Respondent.

[12] The obvious challenge that the Applicant faces in this matter, is its own failure to comply with Rule 7A(6), i.e. to serve the record on the Third Respondent and then expect the Third Respondent to deliver an answering affidavit to the review application. The Applicant’s insistence in this regard by bringing an application to compel is remarkable as is the Applicant’s reliance on the directive issued on 29 January 2019. Mr Moodley knew that he had not served the record on the Third Respondent. He would therefore have known, or at least ought to have known, that the aforesaid directive was issued on the assumption that the record was served on the Third Respondent lest it would not have been issued.

[13] In the Third Respondent’s application to dismiss the review application the Third Respondent states that Applicant had failed

and/or refuses and neglected to provide the Third Respondent with the record of the arbitration proceedings as well as the Applicant’s

notice in terms of Rule 7A(8). In its answering affidavit the Applicant refers to its letter to the Third Respondent (date 19 January 2017) where it states that ‘this correspondence notifies the Third Respondent’s representatives that the transcript was ready for collection from our offices. Such correspondence received no response from the Third Respondent’s representative. To date the Third Respondent has failed to collect a copy of the transcript’.

[14] Rule 7A(6) of the Labour Court Rules provides:

‘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 reason filed by the person or body’.

[15] Rule 7A(7) provides:

‘The costs of transcription of the record, copying and delivery of the record and reason, if any, must be paid by the applicant and then become costs in the cause’.

[16] These rules have been flagrantly ignored by the Applicant and it is not the Applicant’s case that Mr Moodley did not know the requirements of Rule 7A(6) or 7A(7).

[17] Although the covid-19 lockdown would account for some of the delay, the delay between the Court restrictions being uplifted and the time when the Applicant attended at Court on 20 January 2022, for the purposes of requesting the file for a set down date, is not fully accounted for.

[18] The Applicant cannot possibly expect this Court to grant the revival of the review in the circumstances where the record has still not been served.

[19] In so far as prospects of success are concerned, the Applicant simply refers in its revival application to its review application and for this Court to have regard to the content therein. No case is made out in the Applicant’s papers. Regardless of what the prospects of success may be, the explanation for the delays in this matter are wanting in the extreme. The manner in which the review application has been pursued is unacceptable.

[20] The award is dated 14 November 2015. The prejudice to the Third Respondent in this matter is overwhelming.

Labour disputes to be resolved expeditiously

[21] In Food and Allied Workers Union on behalf of Gaoshubelwe v Pieman's Pantry (Pty) Ltd,[2] the Court said the following: "Our courts have, on occasion, pronounced on the importance of labour disputes to be conducted with expedition. For example, in National Research Foundation the Labour Court held: It is now trite that there exists a particular requirement of expedition where it comes to the prosecution of employment law disputes…”.

[22] In the matter of Steenkamp and others v Edcon Ltd[3] at paragraph 38 (under the heading “Broader object of the LRA”), the Constitutional Court placed emphasis on the fact

that the expeditious resolution of labour disputes is one of the primary objects of the LRA. This had important consequences, described in more detail in paragraphs [39] to [41] of the judgment, commencing with the proposition that “time periods in the context of labour disputes are generally essential to bring about timely resolution of the disputes”. The further points made by the Court include that labour disputes by their nature require speedy resolution, and that any delay in the resolution of labour disputes undermines the primary object of the LRA.

Failure to comply with the Practice Manual

[23] Item 11.2.2 of the Labour Court Practice Manual which applied during the period of this matter, provides-

‘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’.

[24] Item 11.2.3 of the Labour Court Practice Manual provides-

‘If the Applicant fails to file the 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 y 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’.

[25] Item 11.2.7 of the Labour Court Practice Manual provides-

‘A review application is by its nature 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 argument) 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 be archived or be removed from the archive’.

[26] The review application was filed on 11 January 2016. The Applicant failed to comply with the items referred to above and the Applicant’s

application to revive the review application is only launched in February 2024.

The Law

[27] In the matter of Samuels v Old Mutual Bank[4] the Court held that-

‘In essence, an application for the retrieval of a file from the archives is a form of an application for condonation for the failure to comply with the court rules, time frames and directives. Showing good cause demands that the application be bona fide; that the applicant provides 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 also been 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.

Conclusion

[28] The Applicant has failed to provide an adequate explanation for the delays in this matter and has not accounted for each period of the delay. There is also no satisfactory explanation for the failure to serve the record on the Third Respondent, which, at the date of the hearing of this matter, had still not been served on the Third Respondent.

[29] Prospects of success were not fully dealt with other than directing the Court to the full content of the review application. Nevertheless, the explanation for the delay fails in the extreme.

[30] For the various reasons set out above, the application for revival of the review application must fail.

Costs

[31] In terms of the provisions of section 162(1) of the LRA, which regulates orders for costs in this Court, I have a wide discretion

when it comes to the issue of costs, having regard to the requirements of the law and fairness after taking account all of the

relevant facts and circumstances.

[32] In exercising this judicial discretion, the Constitutional Court in Long v South African Breweries (Pty) Ltd and Others[5] reaffirmed the principle set in Zungu v Premier of the Province of Kwa-Zulu Natal and Others[6] with regard to costs in employment disputes and stated that ‘when making an adverse costs order in a labour matter, a presiding officer is required to consider the principle of fairness and have due regard to the conduct of the parties’.

[33] The delays in this matter, caused by the Applicant and which is the result of an apathetic approach in pursuing the review application,

is excessive. The fact that the record was never filed even up to the date of the hearing of this matter is simply unacceptable and of significant prejudice to the Third Respondent.

[34] Taking into account of all the relevant facts and circumstances as well as the prejudice to the Third Respondent, and having regard for the requirements of the law and fairness, I consider it appropriate to make a costs order, and I exercise my discretion as to costs accordingly.

[35] In the premises, I make the following order:

Order

1. The application to revive the Applicant’s review application is dismissed with costs.

L. Dave

Acting Judge of the Labour Court of South Africa

Appearance:

For the Applicant: Ginen Moodley Moodley Attorneys Inc For the Respondent: Sifundo Ntshaba Voyi Attorneys

[1] No. 66 of 1995.

[2] (2018) 39 ILJ 1213 (CC) at para 187

[3] [2019] 11 BLLR 1189 (CC)

[4] (2017) 38 ILJ 1790 (LAC)

[5] (2019) 40 ILJ 965 (CC) at para 30.

[6] (2018) 39 ILJ 523 (CC) at para 25