Qhithi v Boxing South Africa :In re: Boxing South Africa v Commissioner- Siavhe N.O and Others (JR95/2019) [2022] ZALCJHB 247 (31 August 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

CASE NO: JR95/2019

In the matter between:

MOFFAT QITHI

Applicant

And

BOXING SOUTH AFRICA

Respondent

In Re:

BOXING SOUTH AFRICA

Applicant

COMMISSIONER: JOHN SIAVHE N.O

First Respondent

COMMISSION FOR CONCILIATION

MEDIATION AND ARBITRATION

Second Respondent

MOFFAT QITHI

Third Respondent

Heard: 9 June 2022

Delivered: 31 August 2022

(This judgment was handed down electronically by circulation to the parties' representatives by email. The date for hand-down is deemed to be 31 August 2022.)

Summary: Rule 11 application upheld – review application dismissed due to inordinate delay, unreasonable explanation and poor prospects.

JUDGMENT

NKUTHA-NKONTWANA, J

[1] This is an interlocutory application in terms of Rule 11 of the Labour Court Rules[1] (Rule 11 application). The applicant (Mr Qithi), the third respondent in the main application (review application), is seeking an order dismissing the review application due to failure by the respondent (BSA), the applicant in the review application, to diligently prosecute same.

[2] In the review application, BSA seeks an order reviewing and setting aside the arbitration award issued by the first respondent in the review application (commissioner) dated 17 December 2018 under case

number GATW 944-15. The commissioner found in favour of the applicant in this application (Mr Qithi) and ordered his reinstatement and compensation.

[3] The review application was filed on 1 February 2019, the last day of the six weeks provided for in Section 145 of the Labour Relations Act[2] (LRA). On 22 February 2019, BSA was served with a Rule 7A(2)(b) notice informing it that the record was available. The record was

duly uplifted and had to be transcribed and filed within 60 days in terms of clause 11.2.2 of the Labour Court Practice Manual [3] (Practice Manual), which expired on 17 May 2019.

[4] BSA contends that the record was incomplete and it would seem that there was an unsuccessful attempt to seek consent for an extension of the 60-day period from Mr Qithi. I pause to mention that BSA has

always been legally represented and clearly knew the consequences for non-compliance with the Practice Manual.

[5] Nonetheless, BSA only approached the Judge President of this Court seeking an extension of the 60-day period for the filing of the record in terms of clause 11.2.3 of the Practice Manual on 7 June 2019. By that time, the 60-day period had already expired and the review application was deemed withdrawn. On 25 September 2019, the request for an extension was dealt with in chambers by my sister, Mahosi J. She accordingly granted the extension of the 60-day period pending the “reconstruction missing record and filling thereof”.[4]

[6] On 16 July 2019, the first reconstruction meeting was held under the auspices of the second respondent in the review application (CCMA). BSA avers that it uplifted the record of that meeting sometime in August 2019 and realised that there were still missing portions. However, it only contacted the CCMA on 18 October 2019 about the incomplete record and made a follow-up on 12 December 2019. Notably, another four months was squandered with no proper explanation.

[7] A further reconstruction meeting was held on 1 February 2020. The record thereof was filed on 24 February 2020 and the next day, on 25 February 2020, same was emailed to BSA’s attorneys of record.[5] There is therefore no merit in BSA’s averment that it never received this notice. The next step that was taken by BSA was on 6 November 2020, nine months after being notified of the availability of the record of the reconstruction meeting, which was only to uplift the record.

[8] On 11 November 2020, Qithi filed the Rule 11 application seeking an order dismissing the review application due to BSA’s failure to diligently prosecute same. BSA is opposing the application. Evidently, almost two years had passed when the Rule 11 application was filed. Even so, the record had not been delivered. The Rule 11 application was set down for 19 May 2022 and served before this Court. Still, the record had not been fully reconstructed.

[9] Mr Qithi was, in any event, willing to have the review application heard since the pleadings had closed. However, BSA contended that the record was still missing some portions and was only willing to proceed if Mr Qithi would accept the record as is. I then postponed the matter to 9 June 2022 in order to deal with both the Rule 11 and review applications.

[10] On 9 June 2022, I only dealt with the Rule 11 application as BSA decided a volte-face about the adequacy of the transcribed record. It contended, therefore, that the matter should be remitted back to the CCMA for a de novo hearing. This contention comes more than three years after the filing of the review application and despite several reconstruction meetings under the auspices of the CCMA.

[11] Mr Qithi was dismissed on 21 June 2015, consequent to a verdict of guilty on charges on gross misconduct. He successfully challenged his dismissal at the CCMA after a protracted arbitration hearing that took over a period of three years. BSA called about 10 witnesses and the transcribed record of the arbitration proceedings is contained in 7 lever arch files. The commissioner issued the award on 17 December 2018 and the review application was delivered on 1 February 2019.

[12] It is now almost 7 years from the time of Mr Qithi’s dismissal and three years from the time the review application was delivered. Yet, Mr Qithi has not enjoyed the fruits of his victory. BSA contends that it was attending to the reconstruction of the record for the past three years but only realised in June 2022 that the record could not be reconstructed further.

[13] The challenge with BSA’s approach to the review application is that it never bothered to approach the Judge President for a further directive after it realised that the reconstruction of the record was taking longer than reasonably tolerable. Armed with Mahosi J’s directive to extend the period for the filing of the record, BSA disappeared into oblivion. 12 months from the date when the review application was filed had passed with no further steps taken in the prosecution of the review application. Clause 11.2.7 of the Practice Manual provides that “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 Arguments) 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.”

[14] Even though the review application had not been archived, it is clearly another consideration in this application. It must be remembered that even the Mahosi J directive was issued way after the review application had lapsed. As correctly submitted by counsel for Mr Qithi, BSA has patently abused the provisions of the Practice Manual and dragged the review application for three years for no apparent reason. BSA has always been represented by firms of attorneys and ought to have been better advised of the state of the record and the urgency required in prosecuting the review application.

[15] To my mind, Mahosi J granted the extension for the filing of the record in vain because, three years down line, the record is still incomplete. That is so despite BSA’s averments that its legal representative had been perusing the record since 4 April 2019 and various reconstruction meetings that took place. BSA, with assistance of the skilled eyes of its legal representatives, failed to detect that the evidence-in-chief of Mr Qithi in relation to charges six and seven was still missing. It is inexplicable as to what they were reconstructing for the last three years, if not deliberately delaying

the matter in order to frustrate Mr Qithi.

[16] Tellingly, there is no attempt to show whether the allegedly missing parts of the record have a bearing on the BSA’s grounds of review. With this in mind, I venture to add that the last request for a reconstruction meeting that led to the CCMA ruling on 18 May 2022, in which the commissioner held the record could not be reconstructed further, was just a ruse to justify the remiss conduct on the part of the BSA legal representatives.

[17] BSA contends that Mr Qithi ought to have complained about the unreasonable delay and put it on terms. Well, the Rule 11 application

was launched on 11 November 2020, yet a year and a half later the record of the review application is still incomplete. It is also

unfair to accuse Mr Qithi of using emotions as opposed to facts. It is not fiction that it is seven years from the time when Mr Qithi was dismissed has passed with no finality to his matter. BSA is obviously insentient and misguided in making light of the challenges facing Mr Qithi who is still unemployed as the economy is continuously shrinking and having expended so much as an individual litigant in order to vindicate his rights. This point was underscored by the Constitution Court in its introductory remarks in the recent judgment of Booi v Amathole District Municipality and others,[6] where it was stated that:

‘Employees are ordinarily vulnerable because, unlike employers, they do not often have the resources necessary to vindicate their rights by prosecuting cases all the way up to this Court. Condoning the flouting of laws that govern the fate of people’s livelihood is a matter so serious that it always requires greater sensitivity and care.’[7] (Emphasis added)

[18] The Constitutional Court further observed that:[8]

‘It is precisely because employees are vulnerable, often lack resources, and that there are labour law rules that regulate the everyday lived experiences of so many, that a body of jurisprudence has developed that seeks to promote, protect and fulfil the right to fair labour practices, in order to embed this right in the fabric of this democracy. Why? Because what is at stake, after all, is a person’s livelihood, upon which much in life depends.’ (Emphasis added)

[19] In my view, this is a typical case where the objects of clauses 11.2.3, 11.2.7 and 16.1[9] of the Practice Manual have been rendered nugatory. As stated in Overberg District Municipality v Independent Municipal & Allied Trade Union on behalf of Spangenberg and others[10] (Overberg), the mischief was obviously a gap in the Labour Court Rules as an applicant in review proceedings was not bound to any fixed timetable

for the filing of the record, once it had been lifted for transcription, or for a timeous prosecution of the review application; hence the introduction of clauses 11.2.3, 11.2.7 and 16.1.

[20] It therefore does not avail an applicant in a review application to simply seek an extension of the period to file the record of the arbitration proceedings and, when granted, it takes three years before filing the record or realise that the record cannot be reconstructed. That would clearly circumvent the objects of the provisions of the Practice Manual and take us back to the era before the introduction of clauses 11.2.3, 11.2.7 and 16.1.

[21] In Macsteel Trading Wadeville v Van der Merwe NO and others[11] (Macsteel), the Labour Appeal Court (LAC) confirmed the powers of the Labour Court in terms of Rule 11, specifically the discretion afforded by Rule 11(4) to take any course of action to achieve the objects of the LRA. In the case, the LAC was presented with a review application that was instituted prior to the promulgation of the Practice Manual but was finally heard after its promulgation. As such, the reference to Rule 11 was clearly aimed at dealing with the view of the Labour Court that the Practice Manual was not applicable. The LAC opined that the respondent ought to have been afforded an opportunity to challenge the inordinate delay in the prosecution of the review application in terms of a Rule 11 application. However, to the extent that the Practice Manual was applicable, the LAC made it clear that the Labour Court lacks jurisdiction to deal with a deemed withdrawn or lapsed review application.

[22] Likewise, in the present case, to the extent that the review application has not lapsed due to the effect of provisions of the Practice Manual, the Rule 11 application is the only process to deal with iodinate delay in the prosecution of the review application. In dealing with the issue of delay, I am bound to follow the two-stage approach endorse by the Constitutional Court in Notyawa v Makana Municipality and others[12]. First, whether the delay was unreasonable. Second, if indeed the delay is unreasonable, whether the delay could be condoned.

[23] In the present case I reckon that the delay is unreasonable. The review application has been fraught with delays from the moment it was launched, which could have been obviated had BSA diligently prosecuted the matter.[13] Moreover, I have considered the history of this matter and the prospects of success. I am not convinced that there was a justifiable

reason for the arbitration to be undertaken over a period of three years other than for BSA’s conduct that dragged it. Now it seeks the matter to be simply remitted back to the CCMA after three years of instituting the review application. Instructively, the delay was occasioned by BSA’s failure to diligently attend to the reconstruction of the record and ultimately the prosecution of the matter.

[24] Having perused the record of the arbitration proceedings and the well-reasoned award, I am also convinced that BSA has no reasonable

prospects of success. In my view, the review application is nothing but a mere appeal. In Booi,[14] the Constitutional Court, apropos, made the following salient point:

‘[50] Before I proceed to the appropriate remedy, I wish to devote a moment to a salient point that ought to be taken away from this judgment. Labour litigation, as envisaged by the LRA, is distinct from any other civil litigation. This is made abundantly clear in the Preamble to the LRA, and through the specialised system and institutions created by that Act. It has also been affirmed by this Court recently. It follows that labour disputes must not be perceived as ordinary civil disputes by the courts that adjudicate them. Our law is clear: labour dispute resolution must be expedient, simple, accessible and cost-effective. It is with this in mind that the LRA carves out unique litigious pathways for disputes that arise pertaining to employment relationships. What the Legislature had in mind when carving out these pathways is evident from the explanatory memorandum to the Draft Labour Relations Bill, to which I once again refer:

“In order for this alternative process to be credible and legitimate and to achieve the purposes of the legislation, it must be cheap, accessible, quick and informal. These are the characteristics of arbitration, whose benefits over court adjudication have been shown in a number of international studies. The absence of an appeal from the arbitrator’s award speeds up the process and frees it from the legalism that accompanies appeal proceedings. It is tempting to provide for appeals because dismissal is a very serious matter, particularly given the lack of prospects of alternative employment in the present economic climate. However, this temptation must be resisted as appeals lead to records, lengthy proceedings, lawyers, legalism, inordinate delays and high costs. Appeals have a negative impact on reinstatement as a remedy, they undermine the basic purpose of the legislation and they make the system too expensive for individuals and small business.”

[51] It is pertinent that the Legislature deliberately provided for the mechanism of a review, as opposed to an appeal, for arbitration awards made in respect of labour disputes. As demonstrated above, the intention behind this choice was to prevent labour dispute resolution procedures from becoming costly and time-consuming and, thereby, inadvertently favouring the party that wields greater resources and power. It was a pragmatic decision that serves the ends of justice and protects the rights enshrined in section 23 of the Constitution. Courts undermine these imperatives by readily treating reviews as appeals. Arbitration awards are intended to be final and binding.

They are not to be treated as a mere box-ticking exercise, or the first step in a drawn-out process that can be exploited by the party who is able to “out-litigate” the other. It is no secret that the Labour Courts are backlogged and that this impedes their ability to adjudicate labour disputes in the swift manner contemplated by the LRA. This problem is, without a doubt,

exacerbated when a court fails to distinguish between a genuine review and an appeal disguised as a review.’ (Emphasis added)

[25] I agree with the submission by Mr Qithi’s counsel that the conduct of BSA is inimical to the stated purpose of the LRA, which is the expeditious resolution of labour disputes, as this matter has been dragging for almost seven years without finality. It follows that the delay cannot be condoned.

[26] In sum, in the light of the inordinate delay, unreasonable explanation and poor prospects of success, I am satisfied that the review application stands to be dismissed.

[27] When it comes to the issue of cost, there is no reason why BSA should not pay Mr Qithi’s costs. Mr Qithi, an individual litigant, had to expend so much in legal costs in a litigation that was not diligently prosecuted and which affected his livelihood for almost seven years.

[28] In all the circumstances, I make the following order:

Order

1. The Rule 11 application is upheld and consequently, the review application is dismissed.

2. BSA shall pay Mr Qithi’s costs, including the costs of the review application.

P. Nkutha-Nkontwana

Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

Mr Maake from Masilo Maake Attorneys

For the Respondent: Advocate X.D Matyolo

Instructed by:

Madlanga & Partners Inc Attorneys

[1] GN 1665 of 14 October 1996: Rules for the conduct of proceedings in the Labour Court.

[2] Act 66 of 1995, as amended.

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

[4] See: Mahosi J directive, annexure MQ2 of the founding affidavit in Rule 11 application, p 16.

[5] See: Annexure MQ3 to the replying affidavit in the Rule 11 Application, pp 80-82.

[6] (2022) 43 ILJ 91 (CC) (Booi).

[7] See: South African Revenue Service v Commission for Conciliation, Mediation and Arbitration 2017 (1) SA 549 (CC) (SARS) at para [52].

[8] Booi supra fn 7 at para [1].

[9] Clause 16.1 provides that: “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…”

[10] (2021) 42 ILJ 1283 (LC) at paras [19] – [35].

[11] (2019) 40 ILJ 798 (LAC) at paras [23] – [26].

[12] (2020) 41 ILJ 1069 (CC) at para [46].

[13] See: Mthembu v Commission for Conciliation, Mediation and Arbitration and others (2020) 41 ILJ 1168 (LC).

[14] Supra fn 7.