Randburg Towers v Masilo; In re Masilo v CCMA and Others (JR 1758/2016) [2021] ZALCJHB 10 (19 February 2021)

The Labour Court of South Africa

(Held at johannesburg)

Judgment

Not reportable

CASE NO: JR 1758/2016

In the matter between:

RANDBURG TOWERS (PTY) LTD

Applicant

and

MASILO, DORCAS DORHA

Respondent

In re:

MASILO, DORCAS DORHA

Applicant

CCMA

First Respondent

COMMISSIONER N RAFFEE N.O.

Second Respondent

RANDBURG TOWERS (PTY) LTD

Third Respondent

Application decided in Chambers.

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

JUDGMENT

VAN NIEKERK J

[1] This is an application in terms of Rule 11 for an order dismissing a review application filed by the respondent on 30 August 2016. In that application, the respondent sought to review and set aside an arbitration award issued on 25 April 2016 in which the arbitrator ruled that the CCMA had no jurisdiction to entertain a dispute that the respondent had referred to arbitration.

[2] On 6 September 2016, the CCMA lodged the record of the arbitration proceedings with the registrar. On 14 October 2016, an additional record, being a reconstructed record of the proceedings was lodged with the registrar. That being so, the 60-day period for the filing of the record of proceedings in terms of rule 7A (6), read with clause 11.2.2 of the practice manual, expired on 10 January 2017. It is not in dispute that the respondent has neither sought an extension of the period for filing the record, nor approached the Judge President for any directive in this regard.

[3] On account of the respondent’s failure to file the record timeously, the applicant seeks to have the review application dismissed.

[4] Clause 11.2.3 makes clear that if an applicant in a review application fails to file the record within the prescribed period, the applicant will be deemed to have withdrawn the application. That being so, in the present instance, the respondent is deemed to have withdrawn the review application and there is consequently no lis between the parties.

[5] To the extent that the applicant submits that the court is empowered to entertain an application to dismiss, that may be so in respect of review applications where an applicant has failed, generally speaking, to prosecute the application with due diligence or where one or more factors, other than one that has the consequence of a deemed withdrawal of the review application, is at play. I do not understand the decision of the Labour Appeal Court in Macsteel Trading Wadeville v François van der Merwe & others (2019) 40 ILJ 798 (LAC) to entitle an applicant to file a Rule 11 application regardless of the state of the review application itself. That decision concerned a review application which in terms of the practice manual had been archived and regarded as lapsed. The reference to the opportunity to file a separate Rule 11 application made in paragraph 28 of the judgment must necessarily be understood in that context. In the present instance, the applicant in the review application is deemed to have withdrawn the application. It is not an application that has lapsed, or which has been archived. Simply put, there is no longer a review application that serves before the court. In those circumstances, in my view, the applicant in the present application is entitled to a declaratory order that gives effect to the consequences visited by clause 11.2.3 on an applicant that fails to comply with the time limits within which to file a record of proceedings sought to be reviewed.

I make the following order:

1. It is decreed that in terms of clause 11.2 of the Practice Manual, the review application filed by the respondent is deemed to have been withdrawn.

André van Niekerk

Judge of the Labour Court of South Africa