Passenger Rail Agency of South Africa v Moreki (J1990/15) [2016] ZALCJHB 171 (3 May 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case no: J1990/15

In the matter between:

PASSENGER RAIL AGENCY OF SOUTH AFRICA Applicant and SHIRLEY MOREKI Respondent

Heard: 28 April 2016

Delivered: 03 May 2016

TLHOTLHALEMAJE, J

Introduction:

[1] The Applicant seeks an order on an urgent basis, to stay the enforcement of the Court order granted by Mohosi AJ on 23 February 2016, until the final determination of the review application filed under case number JR2361/15. The Applicant further seeks an order absolving it from paying security in terms of the provisions of section 145 (7) and (8) of the Labour Relations Act[1]. The application is strenuously opposed by the Respondent.

Background material:

[2] The relevant background and common cause material is as follows;

2.1 The Respondent is an erstwhile employee of the Applicant. She was dismissed on 29 October 2014 on the grounds of alleged misconduct. Having referred an alleged unfair dismissal dispute to the CCMA, an award was issued in her favour on 4 September 2015. In the award, her dismissal was found to be substantively and procedurally unfair, and it was ordered that she should be reinstated on 14 September 2015, with back-payment in the amount of R382 800.00. On 14 September

2015, the Respondent duly reported for duty and was advised in writing that the Applicant intended to review the arbitration award.

2.2 On 1 October 2015, the Respondent approached the Court in terms of section 158 (1) (c) of the LRA to make the award an order of court. That application was unopposed other than the filing of an intention to oppose it. The Applicant’s contention was that it had contemplated to file a review application against the award.

2.3 The Applicant filed an application to review the award under case number JR2361/15 on 30 November 2015. The Respondent promptly opposed the review application on 15 December 2015 despite a record not having been filed. In the absence of opposition to the section 158 (1) (c) application, the Respondent proceeded to set the matter down for hearing. Mohosi AJ accordingly granted the application on 23 February 2016.

2.4 On 14 December 2015, the CCMA delivered the record of the arbitration proceedings. As the Applicant had not filed the record, the Respondent’s attorneys on 7 April 2016 addressed a letter to the Applicant’s attorneys of record to request the record of proceedings. As at the filing of the urgent application before the court on 19 April 2016, the record of proceedings in the review application had still not been filed. On 11 April 2016, the Respondent had reported for duty following the arbitration award having been made an order of Court. On her version, despite having reported for duty, she had not been assigned any duties.

Preliminary issues:

[3] In opposing the application, the Respondent raised a variety of preliminary points. The first was that the Applicant brought this

application under the same case number of the court order it seeks to stay pending the review application. The Applicant however failed to attach to its application the order it seeks to stay. To this end, it was contended that the application was defective.

[4] In its reply, the Applicant disputed that the application was defective, as the Respondent was aware which order was being referred to as she was the one that had obtained it. To this end, and in order to cure the defect, a copy of the court order sought to be stayed was annexed to the replying affidavit.

[5] In regards to the defect complained of, it is my view that such a defect is not sufficiently material to render the entire application

defective. I am in agreement with the Applicant’s contentions that surely the Respondent was aware of the order sought to be stayed, and I did not understand the Respondent’s contentions to be that she had been severely prejudiced by this particular

defect.

[6] The second preliminary point raised was to the effect that in its Notice of Motion, the Applicant sought an order staying the enforcement of the Court order, and yet in the founding affidavit, it appeared that the Applicant was seeking an order staying the certification of the arbitration award under review. It was further contended that the Applicant in addition, appears to be seeking an order staying the operation of the arbitration award pending the final adjudication of its review application.

[7] The Applicant’s response was that the founding papers made it clear that what it sought was an order to stay the execution of the order granted, and that therefore there was no confusion. It was conceded that there was a court order, but denied that there was no pending application to rescind same as there was a pending review application which was to be heard in due course.

[8] As can be gleaned from prayer 2 of the Applicant’s Notice of Motion, it seeks an order to stay the enforcement of the order

granted by Mahosi AJ on 23 February 2016 until the final determination of the review application filed under case number JR2361/15. The same prayer is repeated under paragraph 4.1 of the Founding Affidavit, where it is also stated that the application was brought before the court in terms of section 145 (7) and (8) of the LRA.

[9] There can be no confusion about relief being sought pending certification of the award since on the Respondent’s version, there was no attempt on her behalf to certify the award. Where however the Applicant’s arguments become flawed is in relation to its contention that it cannot be said there is no pending application to rescind the order granted by Mahosi AJ as there is a pending application to review the award. The application to review the award is before the court in terms of the provisions of section 145 of the LRA. Those provisions are clearly distinguishable from those under section 165 of the Labour Relations Act[2], and the requirements and prerequisites applicable either application are different. There is therefore no substance in the contention that the application to review the award can be equated to that of a rescission of the court order. As things stand, there is no proper application to rescind the order granted by Mahosi AJ on 23 February 2016.

[10] It was submitted on behalf of the Respondent that the order sought by the Applicant cannot be granted in the absence of an application for rescission. This question need not however be answered in full at this stage, save to state that by virtue of its discretionary powers under the provisions of section 158 of the LRA, this Court can stay the enforcement of its own orders[3]. Further in the light of the conclusions to be reached, it is not necessary to deal with the question of whether the Applicant should be absolved from paying security of costs as required in the provisions of section 145 (7) and (8) of the LRA.

Urgency:

[11] Central to this application is whether it should be treated as urgent. The Respondent’s contention was the application was not urgent, and that in fact, the urgency was self-created. In its founding papers, the Applicant contended that the application should be treated as urgent on the grounds that;

a) If the court order was not stayed, it would render the review application as filed academic,

b) The Applicant would suffer irreparable harm by being forced to reinstate the Respondent,

c) There is no other available suitable remedy, and the Respondent would not be prejudiced since the review is almost finalised,

d) There is almost no prospects that the Applicant would obtain substantial redress in the ordinary motion court in that the Respondent would likely want to enforce the order since she had already attempted to secure her reinstatement as from 11 April 2016.

[12] Rule 8 of the Rules for the Conduct of Proceedings in the Labour Court provide that;

(1) “A party that applies for urgent relief must file an application that complies with the requirements of rules 7(1), 7(2), 7(3) and, if applicable, 7(7).

(2) The affidavit in support of the application must also contain-

(a) the reasons for urgency and why urgent relief is necessary;

(b) the reasons why the requirements of the rules were not complied with, if that is the case; and

(c) if a party brings an application in a shorter period than that provided for in terms of section 68(2) of the Act, the party must provide reasons why a shorter period of notice should be permitted”.

[13] In an explication of the above rules, the Labour Appeal Court in Mimmo’s Franchising CC v Spiro, Harry David[4] held that;

“A party applying for relief on an urgent basis must in the founding papers set out the reasons for urgency; state why urgent relief is necessary; and also set out why the requirements of the rules of court have not been complied with, if that is the case (sub-rules

8(2)(a) and (b)). The purpose of those sub-rules is self-evident. Considerations of fairness dictate that litigious matters should be heard in more or less the sequence in which they have become ripe for hearing. If it were to be otherwise, it will bring about additional delays in the hearing of matters already awaiting their turn and result in self-evident unfairness and the potential for prejudice. Sub-rule 8(2) requires an applicant to place such facts before the court as would be sufficient to enable it to exercise a judicial discretion in regard to whether sufficient and satisfactory grounds have been shown to exist to justify giving the particular matter preference. Urgency usually entails a deviation from the forms, time-limits and procedures prescribed by the rules or a departure from the established sitting times of the court (Cf: Luna Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a Makin’s Furniture Manufacturers) 1977(4) SA 135 (W) at 136 H). The factors that are usually taken into account in the exercise of such a discretion are a) any prejudice that an applicant might suffer if the application had to be dealt with in the ordinary course; b) any prejudice other parties awaiting the hearing of their matters might suffer if the particular application were to be given preference; and c) any prejudice that the respondent might suffer as a result of any deviation from the prescribed forms and procedures, the abridgement of any prescribed time-limits and an accelleration of the hearing (See: IL & B Marcow Caterers (Pty) Ltd v Greatermans SA Ltd and Another: Aroma Inn (Pty) Ltd v Hypermarkets (Pty) Ltd and Another 1981(4) SA 108 (C) at 112 H – 113 A; 114 A – B). The provisions of Rule 8 clearly apply to all urgent applications, irrespective of whether the relief claimed is of an interim or final nature”[5].

[14] This Court in Jiba v Minister: Department of Justice and Constitutional Development and Others [6] held that;

“Rule 8 of the rules of this court requires a party seeking urgent relief to set out the reasons for urgency, and the degree to which the ordinary applicable rules should be relaxed is dependent on the degree of urgency. It is equally trite that an applicant is not entitled to rely on urgency that is self-created when seeking deviation from the rules”.

[15] An applicant is thus not entitled to rely on urgency that is self-created when seeking a deviation from the rules. In further emphasising this point, this court in National Police Service Union and others v National Negotiating Forum and others[7], held that the latitude extended to parties to dispense with the rules of the court in circumstances of urgency is not be available to parties who are dilatory to the point where their very inactivity is the cause of the harm on which they rely on to seek relief.

[16] Emanating from the provisions of Rule 8 and the principles set out in the authorities referred to, it becomes apparent that urgency is not there for taking, and an applicant seeking urgent relief must adequately and in detail, set out in the founding affidavit, the reasons the matter before the court should be treated with urgency. In determining urgency, a court will be guided by considerations of whether the reasons that make the matter urgent have been set out succinctly in the papers and secondly, whether the applicant seeking relief will not obtain a substantial relief at a later stage.

[17] Thus the basis for allowing parties to dispense with the Rules of Court relating to time periods is to prevent the occasioning of an injustice and involves the balancing of this consideration with that of the rights of parties to a considered opportunity to place their cases before the court[8]. It therefore follows that where the court is not satisfied that sufficient reasons have been given for the matter to be treated as one of urgency, the application ought to be struck off from the roll on that ground alone[9].

[18] The urgency of this application is predicated on that part of the relief that the Applicant seeks in reviewing the unfavourable award against it. In my view, considerations to be taken into account should be the steps that were taken by the Applicant in asserting its rights in that regard, it being trite that the court will refuse to exercise its discretion in favour of the applicant in an instance where it is found that it had been dilatory

in bringing an application for the granting of relief on an urgent basis. As it was stated in Mimmo’s Franchising CC, the length of the delay and the cogency of the explanation therefor will constitute pivotal considerations in the exercise by a court of such a discretion[10]. The enquiry into urgency in this case should take place against the material already outlined in this judgment which is that;

[19] The unfavourable arbitration award was issued on 4 September 2015. In accordance with the provisions of section 145 (1) (a) of the LRA, any review application ought to have been filed and served on or about 16 October 2015. The Applicant however filed and served such an application on 30 November 2015, some six weeks out of time. It was never placed before the court that an application for condonation was filed in that regard, and no attempt was made for the purposes of this application why the time frames in section 145 (1) (a) of the LRA were not complied with.

[20] The Respondent had pursuant to the award, reported for duty on 14 September 2015, and was simply informed that an application for a review was to be launched. In the absence of such an application, the Respondent had then approached the Court in terms of the provisions of section 158 (1) (c) of the LRA. The Applicant was fully aware of this application and took no steps to oppose it, on the misguided notion that a review application would suffice. As at 23 February 2016, no opposition to the section 158 (1) (c) application had been filed and consequently, the arbitration award was made an order of court by Mahosi AJ.

[21] Despite the Applicant contending that it had always been aggrieved by the award, at no stage were any steps taken to rescind that order in accordance with the provisions of section 165 of the LRA. Any party serious about challenging an unfavourable award would have promptly opposed any steps taken in enforcing or executing that award. The Applicant instead waited some eight weeks after the granting of the court order before approaching this court with this urgent application, and even then, it was after the Respondent had tendered her services. The Applicant did not make any attempt whatsoever to explain the delay between 23 February 2016 when the arbitration award was made an order of court, and 19 April 2016 when it launched this application.

[22] I am in agreement with the submissions made by Mr. Majare on behalf of the Respondent that the urgency claimed by the Applicant is clearly self-created, and that all that the Applicant has done in the name of asserting its rights was merely to react after the fact. This after the fact reaction on the part of the Applicant is further borne out by the following factors;

[23] There is no indication that the review application is properly before the Court in the light of it not being averred by the Applicant that an application for condonation had been filed in that regard. Secondly, as at 19 April 2016 when the Applicant launched the urgent application, the record of proceedings in accordance with the provisions of Rule 7A (8) of the Rules of this Court had not been filed. This was despite the record of arbitration proceedings having been made available by the CCMA as far back as 14 December 2015.

[24] Mr. Majare had during the hearing of this application, informed the Court that the record was only filed and served on 21 April 2016, some two days after the launching of the urgent application. Even then, such a record is incomplete, and there is no indication that an application for condonation for the late filing of that record was filed, nor is there any indication that steps have been taken to attend to the incomplete record.

[25] In the light of the above, I am not satisfied that the Applicant has demonstrated that it deserves the application before the court to be given preference. The Applicant has not met the requirements set out in Rule 8 of the Rules of this Court. As can be gleaned from the events outlined above insofar as the prosecution of the review application is concerned, it is further apparent that the Applicant has been dilatory and at worst, negligent in asserting its rights. The Applicant’s actions since the receipt of the award have merely been in reaction to every step the Respondent had taken in executing the award issued in her favour. The Applicant has not at all demonstrated that it had at any stage taken initiative to contest the award.

[26] It is not sufficient for a party when approaching a court on an urgent basis to adopt the approach that it is of right entitled to

preferential treatment failing which it would suffer prejudice in the event that its urgent application is not granted. A party needs to demonstrate that it had also in asserting its rights, acted diligently and with the urgency that the matter it seeks to pursue requires. The Applicant has in my view, woefully failed in all material respects in this regard. An adverse award obtained as in this case clearly has consequences for the Applicant. In order to mitigate those consequences, the duty was upon the Applicant to act swiftly and with diligence in order to contest that award. It dismally failed to do so and the prejudice it claims as a consequence of the execution of the court order granted on 23 February 2016 is purely of its own making, and in particular, its dilatoriness and propensity to react rather than being proactive. On the other hand, it is the Respondent that stands to suffer extreme prejudice if this application was to be accorded urgency, in that she would be unable to execute a court order in her favour as a result of the Applicant’s dilatoriness and negligence in prosecuting the review application. In the light of the problems and defects highlighted in respect of the filing of that review application, it is clearly disingenuous on the part of the Applicant to contend that the review application is ripe for a hearing. There are a number of hurdles that the Applicant needs to surmount before that application can be said to be ready for a hearing.

Costs:

[27] Whether costs should be granted in this court involves a consideration of law and fairness. It is my view that it would be iniquitous to burden the Respondent with legal costs in circumstances where she was compelled to defend an application that had no prospects of being given preferential treatment. This application as already stated is also clearly a belated knee jerk reaction to every step that the Respondent had attempted to take in executing an order in her favour. To this end, the Applicant should be liable for her costs.

Order:

i. The Applicant’s application is struck off from the roll on account of lack of urgency.

ii. The Applicant is ordered to pay the costs of this application.

__________________

Tlhotlhalemaje, J

Judge of the Labour Court of South Africa

APPEARANCES:

On behalf of the Applicant:

Adv. N Nharmuravate

Instructed by:

Msikiya Attorneys

On behalf of the Respondent:

Mr DM Majare of Majare Attorneys

[1] Act 66 of 1995 as amended

[2] Section 165. Variation and rescission of orders of Labour Court The Labour Court, acting of its own accord or on the application of any affected party may vary or rescind a decision, judgment or order – (a) erroneously sought or erroneously granted in the absence of any party affected by that judgment or order; (b) in which there is an ambiguity, or an obvious error or omission, but only to the extent of that ambiguity, error or omission; or (c) granted as a result of a mistake common to the parties to the proceedings.

[2] Section 165. Variation and rescission of orders of Labour Court

The Labour Court, acting of its own accord or on the application of any affected party may vary or rescind a decision, judgment or order –

(a) erroneously sought or erroneously granted in the absence of any party affected by that judgment or order;

(b) in which there is an ambiguity, or an obvious error or omission, but only to the extent of that ambiguity, error or omission; or

(c) granted as a result of a mistake common to the parties to the proceedings.

[3] See Robor (Pty) Ltd (Tube division) v Joubert NO and Others [2009] 8 BLLR 785 (LC) at paras 9 - 16

[4] (JA58/00) [2002] ZALAC 7 (29 March 2002)

[5] At para [29]

[6] (2010) 31 ILJ 112 at para 18

[7](1999) 20 ILJ 1081 (LC) para [39]

[8] See National Police Services Union v National Commissioner of the National Police Services and Others (1999) 20 ILJ 2408 (LC); Commissioner For the South African Revenue Services v Hawker Air Services (Pty) Ltd and Another Case no: 379/2005 at para 9 and Vermaak v Taung Local Municipality (JR315/13) [2013] ZALCJHB 43 (12 March 2013)

[9] See Commissioner For the South African Revenue Services v Hawker Air Services (Pty) Ltd and Another (supra) where it was held that: “Urgency is a reason that may justify deviation from the times and forms the rules prescribe. It relates to form, not substance, and is not a prerequisite to a claim for substantive relief. Where an application is brought on the basis of urgency, the rules of court permit a court (or a judge in chambers) to dispense with the forms and service usually required, and to dispose of it ‘as to it seems meet’ (Rule 6(12)(a)). This in effect permits an urgent applicant, subject to the court’s control, to forge its own rules (See Republikeinses Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk 1972(1) SA 773 (A) 782A-783H) which must ‘as far as practicable be in accordance with’ the rules). Where the application lacks the requisite element or degree of urgency, the court can for that reason decline to exercise its powers under Rule 6(12) (a). The matter is then not properly on the court’s roll, and it declines to hear it. The appropriate order is generally to strike the application from the roll. This enables the applicant to set the matter down again, on proper notice and compliance”.

[9] See Commissioner For the South African Revenue Services v Hawker Air Services (Pty) Ltd and Another (supra) where it was held that:

“Urgency is a reason that may justify deviation from the times and forms the rules prescribe. It relates to form, not substance, and is not a prerequisite to a claim for substantive relief. Where an application is brought on the basis of urgency, the rules of court permit a court (or a judge in chambers) to dispense with the forms and service usually required, and to dispose of it ‘as to it seems meet’ (Rule 6(12)(a)). This in effect permits an urgent applicant, subject to the court’s control, to forge its own rules (See Republikeinses Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk 1972(1) SA 773 (A) 782A-783H) which must ‘as far as practicable be in accordance with’ the rules). Where the application lacks the requisite element or degree of urgency, the court can for that reason decline to exercise its powers under Rule 6(12) (a). The matter is then not properly on the court’s roll, and it declines to hear it. The appropriate order is generally to strike the application from the roll. This enables the applicant to set the matter down again, on proper notice and compliance”.

[10] At para [31]