PAWUSO obo Phalane v Northern Cape Tvet College and Others (JR 859/2018) [2021] ZALCJHB 7 (19 February 2021)

The Labour Court of South Africa

(Held at johannesburg)

Judgment

Not reportable

CASE NO: JR 859/2018

In the matter between:

PAWUSO obo J PHALANE

Applicant

and

NORTHERN CAPE TVET COLLEGE

First Respondent

DEPT OF HIGHER EDUCATION AND

TRAINING

Second Respondent

EDUCATION LABOUR RELATIONS

COUNCIL

Third Respondent

COMMISSIONER P MASIHLEHO N.O.

Fourth Respondent

Application heard: 18 February 2021.

Judgment delivered: 19 February 2021. Judgment delivered by email, circulated to the parties’ representatives.

JUDGMENT

VAN NIEKERK J

[1] On 8 May 2018, the applicant filed an application to review and set aside an arbitration award issued by the fourth respondent on 27 March 2018. The second respondent has filed an application in terms of Rule 11 to dismiss the review application on account of what it contends to be the applicant’s failure to prosecute the review application with due diligence. For the sake of convenience, I refer to the parties as they are cited in the review application.

[2] First, the applicant seeks condonation for the late filing of the answering affidavit in the Rule 11 application. The Rule 11 application was filed on 18 March 2019 and the answering affidavit filed some 148 days late. At the hearing, the applicant did not pursue the application for condonation, having accepted that the Rule 11 application raises issues of a legal nature and stands to be determined largely on the basis of the application of the practice manual.

[3] In the founding affidavit in the Rule 11 application, the second respondent records that the applicant has failed to comply with clause 11.2 of the practice manual, in that he failed to file the record of proceedings under review within the required period of 60 days from the date on which notice was given that the record was available for collection. The bargaining council served a rule 7A (3) notice on 18 May 2018. On 3 October 2018 a Rule 7A (6) notice was filed with an incomplete record. In particular, the bundle of documents used during the arbitration was not included in the record. On 3 December 2018, the second respondent advised the applicant that the record was incomplete. On 11 December 2018, the applicant’s attorneys advise the second respondent that they would withdraw the Rule7A (6) notice in due course, and supplement the papers. On 28 January 2019, the second respondent was advised that the applicant would not be withdrawing the notice and would not be supplementing the records.

[4] It is not in dispute that the record of the arbitration proceedings, such as it is, was not filed within the required time limit. It is also not in dispute that the applicant did not seek consent for an extension of the time limit from the second respondent, nor did the applicant seek a directive from the Judge President as provided in clause 11.2.2 of the practice manual.

[5] To the extent that the applicant contends that the second respondent granted its tacit consent to the extension of the 60-day time limit, this is not a case that is made out on the papers. In any event, clause 11.2.3 of the practice manual does not contemplate tacit consent – it requires the applicant in a review application who is unable to file the record within the prescribed period to request the respondent’s consent for an extension of time. Further, to

the extent that the applicant relies on clause 11.2.7 of the practice manual (which requires an applicant in a review application to file all the necessary papers within 12 months from the date of the launch of the application) to contend that it was entitled to file the record within that period, there is no merit in this submission. Clause 11.2.7 does not have an overriding effect and does not permit a party who has failed the record timeously to escape the consequences of that failure by filing the record together with the remaining papers in the review application within 12 months of the date on which the application was filed. Clause 11.2.7 clearly refers to any supplementary affidavit in terms of Rule 7A (8) and any replying affidavit that may be filed.

[6] In consequence, in terms of clause 11.2.3 of the practice manual, the review application is deemed to have been withdrawn. There is consequently no lis before the court and the second respondent is entitled to a declaratory order that the review application is deemed to have been

withdrawn.

I make the following order:

1. In terms of clause 11.2 of the Practice Manual, the application for review is deemed to have been withdrawn.

André van Niekerk

Judge of the Labour Court of South Africa

APPEARANCES

For the applicant in the Rule 11 application: Adv KA Tema, instructed by the state attorney

For the respondent: Ms C Mouton, Vermeulen Attorneys