Praga Technical (Pty) Ltd v AMCU obo Majata and Others (JR2133/2021) [2024] ZALCJHB 228 (12 June 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR2133/2021

In the matter between:

PRAGA TECHNICAL (PTY) LTD Applicant

and

AMCU obo MARARI MAJATA

First Respondent

COMMISISONER ANNEMARIE BREEDT N.O

Second Respondent

THE MOTOR INDUSTRIES BARGAINING COUNCIL Third Respondent

Heard: 3 April 2024

Delivered 12 June 2024

JUDGMENT

SCHENSEMA, AJ

Introduction

[1] The applicant seeks to review and set aside an arbitration award (award) dated 31 August 2021 under case number MIPT32038/2020 wherein the second respondent (Commissioner) found that the first respondent's dismissal was procedurally and substantively unfair, and reinstated the first respondent.

[2] The application is opposed by the first respondent, inter alia on the basis that the matter is archived in terms of 16.1 of the Practice Manual[1].

Background

[3] The material facts are captured in the award under review, and I do not intend to repeat the evidence in great detail. It is sufficient

for present purposes to record that the first respondent was employed by the applicant as an operator.

[4] The first respondent failed to report for duty for more than five consecutive days from 31 August 2020 to 7 September 2020 and was subsequently summarily dismissed for desertion. The first respondent subsequently referred an unfair dismissal dispute to the third respondent, the outcome of which resulted in the first respondent’s reinstatement.

[5] The Commissioner summarised the evidence of the witnesses called by the parties, and in her analysis of the evidence, the Commissioner

concluded that the applicant had failed to establish that the dismissal was fair inter alia on the basis that:

5.1 the MIBCO Main Collective Agreement defines desertion as follows:

‘An employee will be regarded as having deserted from his employer’s service after a continuous absence of five working days and without notification to his employer of his whereabouts:

Provided that –

(a) The employer attempts to contact the employee in writing (either electronic or hard copy) at his last known address; email address or telephone number supplied by the employee;’

5.2 an employer cannot simply assume that an employee does not have the intention to return to work, as something more is required;

5.3 the applicant, on a balance of probabilities, failed to discharge the onus to prove that the first respondent had no intention to return to work. The intention “not to return to work” is one of the essential elements in concluding that a desertion has taken place;

5.4 no evidence was led by the applicant during the arbitration that the first respondent had no intention to return to work. On the contrary, contact had been made by the first respondent on 3 September 2020 that he would be returning to work on 7 September 2020;

5.5 there was no evidence why the first respondent was not found guilty of absence without official leave as a recording of a telephone

discussion existed in respect of which the first respondent had called the industrial relations manager Mr Kabelo;

5.6 the applicant failed to show any real interest in ascertaining the reasons for the first respondent’s absence;

5.7 further, the applicant could not prove that the dismissal of the first respondent was procedurally fair, in that the applicant had failed to inform the first respondent of his rights. The applicant could also not prove that a disciplinary hearing was held and when the first respondent returned to the workplace on 8, 9 and 14 September 2020, he requested an opportunity to explain his absence which opportunity was denied;

5.8 the first respondent’s failure to produce a sick note and that he did not receive the SMS messages was not accepted by the

Commissioner, which resulted in the first respondent not receiving any backpay; and

5.9 in conclusion, the Commissioner determined that a sanction of a summary dismissal was too harsh.

The review application

[6] The applicant’s review application is dated 6 October 2021 and was served on the respondents on 7 October 2021.

[7] On 4 November 2021, the applicant served its notice in terms of Rule 7A(8)(b)[2] in response to which the first respondent served his answering affidavit on 13 April 2022. No further steps were taken by the applicant and the first respondent’s attorneys filed the Rule 22B notice on 1 September 2022 in respect of which it was advised that the first respondent had attended to the indexing and pagination of the court file and further requested the matter be set down on the opposed motion roll.

[8] On 7 June 2023, Mr Voorby of the Labour Court issued a directive that the applicant file its heads of argument within 15 days of receipt of the directive and thereafter, the first respondent was to file his heads of argument within 10 court days of receipt of the applicant’s heads of argument. The applicant failed to comply with the directive, resulting in the first respondent’s heads of argument being filed at court on 2 February 2023.

[9] On 25 January 2024, Mr Voorby emailed the notice of set down to the parties. On perusal of the email addresses, it is apparent that an error had occurred, in that the applicant’s attorneys’ email address had been incorrectly recorded. Notwithstanding this, however, Mrs Ntuli had addressed an email to the parties on 19 March 2024 in which Mrs Ntuli informed the parties that the matter would be heard at the Labour Court situated in Braamfontein.

[10] The applicant took no action when it received the first respondent’s heads of argument in early 2023 and further took no action upon receipt of Mrs Ntuli’s email of 19 March 2024. Only after having received a telephone call from a registrar of the court Mr Dumisani Moiane on 28 March 2024, did the applicant file its heads of argument via email on 2 April 2024 together with a supplementary bundle of documents.

[11] In the applicant’s heads of argument, the applicant records that it only became aware of the set down date on 28 March 2024,

notwithstanding Mrs Ntuli’s email of 19 March 2024. When asked as to why the applicant’s legal representatives took no action upon receipt of Mrs Ntuli’s email, Mr Meyer was unable to provide any explanation.

[12] The applicant was further unable to provide any explanation as to why no action was taken when it received the directive on 7 June 2022 and secondly when the first respondent’s heads of argument were received in early 2023.

[13] In terms of the applicant’s heads of argument, the applicant raises a number of issues in relation to the unenforceability of the award and that for this reason, it was no longer necessary for the applicant to pursue the review application. Notwithstanding this, however, the applicant did not file a notice of withdrawal.

[14] In short, the applicant takes issue with the fact that the first respondent is a foreign national with Zimbabwean citizenship and

therefore requires a valid work permit to work in the Republic of South Africa.

[15] In terms of the applicant’s timeline, the first respondent was dismissed on 7 September 2020 and during the first respondent’s

employment, his work permit was valid. However, the applicant unilaterally determined, upon review of the work permit, that when

the first respondent was dismissed, it would only have been possible for the applicant to have reinstated the first respondent until 31 December 2021, therefore rendering the award a nullity.

[16] For the reasons set out below, I will not deal with this aspect.

Analysis

The Practice Manual

[17] Clause 11.2.7 of the Practice Manual reads as follows:

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

[18] Clause 16.1 of the Practice Manual reads as follows:

‘In spite of any other provision in this manual, the Registrar will archive a file in the following circumstances:

• in the case of an application in terms of Rule 7 or Rule 7A, when a period of six months has elapsed without any steps taken by the applicant from the date of filing the application, or the date of the last process filed…’

[19] In terms of the review application, after the answering affidavit had been served and filed by the first respondent in April 2022, the applicant did not file a replying affidavit and took no steps to have the matter set down. It was the first respondent that indexed and paginated the court file, filed the Rule 22B notice requesting the matter to be set down and filed the heads of argument after having received the directive to do so. The applicant’s last step in the process was to file its notice in terms of Rule 7A(8)(b) on 4 November 2021.

[20] The applicant’s legal representative conceded from the bar that, given the status of the expired work permit, it was for this reason that the award was a nullity and that the applicant ought to have withdrawn the review application.

[21] In Xstrata SA (Pty) Ltd-Horizone Mine vs BCAWU obo NN Tshabangu & Others[3], the Labour Appeal Court (LAC) held:

‘…The phrase ‘any steps taken’ in clause 16.1 must necessarily be understood in the context of an attempt by the Practice Manual to expedite the hearing of review applications and promote efficiency goals. In a review application, the necessary steps after filing the application in terms of Rule 7A include the timeous collection of the record after the registrar has issued a notice in terms of Rule 7A(5), the preparation and delivery of the record within the prescribed period (Rule 7A(6) read with clause 11.2.2. of the Practice Manual), the filing of any supplementary affidavit or delivery of a notice in terms of Rule7A(8)(b), the indexing and pagination of the papers in terms of clause 11.2.8; a request directed to the registrar for the allocation of a hearing date (clause 11.2.7) and the filing of a practice note in terms of clause 11.8….’

[22] In Eskom Holdings SOC Ltd v Kgaile[4], reference was made to the matter of Macsteel Trading Wadeville v Van der Merwe NO and others[5]. The court said the following:

‘In Macsteel Trading Wadeville v Van der Merwe N.O and others, the Labour Appeal Court noted that the underlying objective of the practice manual is the promotion of the statutory imperative of expeditious dispute resolution. In that case, the court recorded that the applicant had failed to ensure that all of the necessary papers were filed within 12 months and advise the registrar that the application was ready for allocation for hearing. In consequence, the LAC held that the Labour Court had no jurisdiction to determine the issue of undue delay since the review application was archived and regarded as lapsed consequent on the applicant’s failure to comply with the practice manual. There was no substantive application for reinstatement of the review application, nor was there any application to condone the undue delay in filing the record. In these circumstances, the Labour Court had determined a review application when it had no jurisdiction to do so, and its order was substituted with an order in terms of which the application was struck from the roll.’ [Own emphasis]

[23] It is clear from the first respondent’s heads of argument filed on 2 February 2023 that the applicant was alive to the fact that the first respondent had raised a preliminary point that the review application was archived and therefore deemed to be dismissed.

Notwithstanding this, the applicant takes no steps to either have the review application reinstated or to file a notice of withdrawal, on the basis that the applicant was of the view that the award was a nullity.

[24] In SA Police Union on behalf of Mnisi v Safety & Security Sectoral Bargaining Council & others[6] (Minsi), Moshoana J, following Ralo v Transnet Port Terminals and Others[7], held that:

‘Where a matter is withdrawn, there can never be talk of a dispute that would require application of the law to decide. This court and other courts refuse to hear applications or matters that are moot. The same principle must apply. A case is moot and therefore not justiciable if it no longer presents an existing or live controversy which should exist if the court is to avoid giving advisory opinions on abstract propositions of law. The dismissal of a review that has been withdrawn no longer affects the interest of the parties. It has no practical effect to the parties nor does it serve the interests of justice.’

[25] The applicant did not comply with its obligations in terms of the Practice Manual and has clearly demonstrated that it had no intention

of pursuing the review application given its view that the award has been rendered a nullity.

[26] The LAC has made it clear that the Labour Court lacks jurisdiction to deal with a deemed withdrawn or lapsed review application.

Accordingly, I am of the view that there is no review application that serves before this Court.

[27] For the reasons set above, this Court is not seized with the review application, however, if it were, the applicant’s review

application is baseless and without merit. The primary task of a commissioner is to take into account the totality of the circumstances. In the present matter, the Commissioner clearly had regard to all of the relevant factors and committed no reviewable irregularity that has the consequence that the award under review is so unreasonable that no reasonable decision maker could reach the decision to which the Commissioner came on the basis of the available evidence. Furthermore, the applicant assumed for itself the right to

decide that the award was a nullity based on the work permit status of the first respondent, in circumstances where it had not expired at the time the award had been given.

Costs

[28] Insofar as costs are concerned, this Court has a broad discretion in terms of section 162 of the Labour Relations Act[8] to make orders for costs according to the requirements of law and fairness.

[29] In my view, this is a case where the interests of justice and fairness will be best served by making an order for costs. In this regard, I am guided by the matter of Public Servants Association of SA on behalf of Khan v Tsabadi NO and Others[9] where it was emphasised that:

‘……unless there are sound reasons which dictate a different approach, it is fair that the successful party should be awarded her costs. The successful party has been compelled to engage in litigation and compelled to incur legal costs in doing so. An appropriate award of costs is one method of ensuring that much earnest thought and consideration goes into decisions to litigate in this court, whether as applicant, in launching proceedings or as respondent opposing proceedings.’

[30] I am further guided by Zungu v Premier of the Province of KwaZulu-Natal and Others[10] in which the Constitutional Court affirmed that the principle of “costs following the result” does not apply in labour matters. Instead, the Court should strive to find a fair balance: it should not discourage parties from bringing their disputes to the Labour Court, but it should also prevent parties from filing cases that do not belong in Court.

[31] This is a case where costs should follow the result. The applicant had taken the view that there was no reason to continue with the review application and that this had been communicated to the first respondent on 2 September 2022 in terms of an email contained in the applicant’s supplementary bundle. Upon perusal of the email, no reference is made to the unenforceability of the award and that for this reason, there was no basis to continue with the review application. Furthermore, the applicant did not file a notice of withdrawal, notwithstanding the fact that it believes the award is unenforceable.

[32] As a result of the applicant’s conduct, the first respondent was forced to take steps to have the review application set down and to further burden this Court to adjudicate an application that the applicant had no intention of pursuing. In light hereof, this is a matter where, in my view, a cost order is warranted.

[33] Based on the above, this Court has no jurisdiction to deal with this matter. I therefore make the following order:

Order

1. The matter is struck from the roll.

2. The applicant is to pay the costs on an attorney and client scale, which costs are to include the costs of Counsel.

H Schensema

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Mr F Mayer of Meyer and Partners Attorneys

For Respondent: Advocate A Cook

Instructed by: LDA Incorporated Attorneys

[1] Practice Manual of the Labour Court of South Africa, effective 1 April 2013.

[2] GN 1665 of 1996: Rules for the Conduct of Proceedings in the Labour Court.

[3] Unreported judgment under case no: JA24/23 delivered on 29 February 2024 at para 15.

[4] (JR 1440/17) [2021] ZALCJHB 8 (19 February 2021) at para 8.

[5] [2018] ZALAC 50; (2019) 40 ILJ 798 (LAC).

[6] Unreported judgment under case no: JR2597/2001 delivered on 19 August 2019 at para 11.

[7] [2015] ZALCPE 69; (2015) 36 IL 2653 (LC) at paras 8 – 10.

[8] Act 66 of 1995, as amended.

[9] [2012[ ZALCJHB 17L (2012) 33 ILJ 2117 (LC) at para 176.

[10] [2018] ZACC 1; (2018) 39 ILJ 523 (CC).