Read Swatman and Voigt (Pty) Ltd v Commission For Conciliation, Mediation and Arbitration and Others (JR662/22) [2024] ZALCJHB 388 (2 October 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR 662/22

In the matter between:

READ SWATMAN and VOIGT (PTY) LTD Applicant and

COMMISSION

FOR CONCILIATION

MEDIATION

AND ARBITRATION First Respondent

COMMISSIONER

EUGENE MTILENI Second Respondent

COMMISSIONER M.A. HAYES Third Respondent

DOUGLAS

ARMSTRONG Fourth Respondent ME PERSONNEL CONSULTANTS (PTY) LTD Fifth Respondent

Heard: 04 July 2024

Delivered: 02 October 2024

This judgment was handed down electronically by circulation to the parties’ representatives by email and release to SAFLII. The date for hand-down is deemed to be 02 October 2024.

Summary: review application – the review application is deemed withdrawn - Application struck from the roll with no order as to costs.

JUDGMENT

MAKOELE, AJ

[1] This is an application to review and set aside the following rulings of the Commission for Conciliation, Mediation and Arbitration (CCMA) and a subsequent default arbitration award:

1.1 The in limine ruling issued by the Second Respondent on 06 September 2021;

1.2 The joinder ruling issued by the Third Respondent on 22 December 2021;

1.3 The ex-tempore ruling dated 18 February 2022, refusing to postpone the arbitration proceedings;

1.4 The ex-tempore ruling dated 18 February 2022, refusing rescission application relating to the joinder ruling;

1.5 The ex-tempore recusal ruling dated 18 February 2022; and

1.6 The default arbitration award dated 10 March 2022.

[2] The Applicant further sought a declaratory order declaring that all further awards are null and void.

[3] The Applicant also sought condonation for the late filing of the review application.

Point in limine raised

[4] The Fourth Respondent raised two points in limine to the effect that the review application is deemed withdrawn and therefore the court lacks jurisdiction. The second point is that no portion of the record of proceedings has been certified in accordance with rule 7A (5) of the Rules for the Conduct of Proceedings in the Labour Court (the rules). I subsequently requested the parties to address me on the points as well as the review application because if I find in favor of the Applicant on the first point, I will have to determine the review application and the second point in limine.

[5] The Fourth Respondent relied on paragraph 11.2.2 of the Labour Court Practice Manual (Practice Manual) and adduced a letter dated 25 August 2022, to which it was brought to the attention of the Applicant that the Applicant has failed to file the record of the proceedings within the required 60-day period. The Fourth Respondent submitted that the record consists of transcripts, in terms of rule 7A (5) and that rule 7A (5) is not in the record. The Fourth Respondent further submitted that the Applicant must satisfy the court and not merely persuade the court that a complete record was indeed filed.

[6] The Applicant, on the other hand submitted that the complete record was filed in less than a 12-month period and that the Fourth Respondent only raised the late filing in its heads of argument. The Applicant further submitted that costs should be awarded against the Fourth Respondent for the late taking of the technical point. The Applicant went on to argue that the record was already filed, and the Fourth Respondent acknowledged receipt of the record.

[7] It’s common cause that only a portion of the record was delivered within the 60-day period. The Applicant’s argument is that it did not refer to the portion of the record that was delivered late and that the Fourth Respondent cannot refer to the

letter as same is not evidence. The Applicant further submitted that the review application must then be dealt with as unopposed because the Fourth Respondent also filed its answering papers late. I must determine the point in limine first, before determining whether the review is opposed or not.

Analysis

[8] Paragraph 11.2.2 of the Labour Court Practice reads:

‘For the purposes of Rule 7A (6), records must be filed within 60 days of the date on which the applicant is advised by the registrar that the record has been received’.[1]

[9] Paragraph 11.2.3 reads:

“If the applicant fails to file a record within the prescribed period, the applicant will be deemed to have withdrawn the application,

unless the applicant has during that period requested the respondent’s consent for an extension of time and consent has been given. If consent is refused, the applicant may, on notice of motion supported by affidavit, apply to the Judge President in

chambers for an extension of time”.[2]

[10] Firstly, the practice manual referred to does not require the Respondent to inform the Applicant that the review application is deemed withdrawn. Therefore, it is immaterial whether the letter is submitted as evidence or not.

[11] Secondly, the Applicant submitted that the relevant portion of the record was filed within the required 60-day period and that this Court should only consider the portion that was filed in time. In order to deal with the argument, I must determine what constitutes record as contemplated in the practice manual.

[12] In South African Police Services v Coericius and Others[3] the question of what is meant by the filling of the record as contemplated in the practice manual was dealt with. The Labour Appeal Court (LAC) clarified that there is no distinction between parts of the record relevant for different aspects of the review application. The ruling emphasizes the importance of filing a complete record within the prescribed period and underscores the Practice Manual as a crucial guide for Applicants. The First question before the court was what was meant by the filing of a” record” as contemplated in the Practice Manual. The Court ruled that there cannot be a distinction between a part of the record relevant for one aspect of the review application, versus another part. The Court, in paragraph 6 of the judgment, stated that “there is only one review application, not two,” highlighting the importance of completeness in the filing process.

[13] It follows then that the whole or complete record must be filed within the 60-day period. The Court further emphasized the orderly hearing of an application, stating that “the whole house must be in order”. Instead, the LAC makes it clear that clause 11.2.3 of the Practice Manual must be utilised to avoid falling foul of the prescripts

imposed for review applications. The court makes it clear that the Applicant should seek consent to the late filing of the record,

failing which the Applicant must make a formal application to the Judge President in chambers for an extension of the time. The LAC further remarked that ‘…. the court is not inclined to entertain an Applicant which does not follow the prescripts of the Practice Manual’. This underscores the importance of bringing an application for extension.

[14] Is the review application deemed withdrawn? In Sol Plaatjie Local Municipality v South African Local Government Bargaining Council and Others[4] the court interpreted clause 11 of the Labour Court’s Practice Manual. The court dealt with the matter where the Applicant had not sought the consent and/or directive from the court. In this matter the court reaffirmed that the provisions in the Practice Manual are binding on litigants and must be adhered to at all times and “it is not to be adhered to or ignored by parties at their convenience.”

[15] In E Tradex (Pty) Ltd t/a Global Trade Solution v Finch and Others,[5] the Court emphasized its strict adherence to prescribed periods and remarked:

‘The rationale is patent and rooted in the advent of the Practice Manual as a gloss on the Rules of the Labour Court. In a busy court

inundated by cases, discipline on the part of practitioners is a critical virtue if good order and respectable turnaround times are to be achieved’.

[16] In Macsteel Trading Wadeville v van der Merwe NO and others[6] the LAC stated that:

“The underlying objective of the Practice Manual is the promotion of the statutory imperative of expeditious dispute resolution. It enforces and gives effect to the Rules of the Labour Court and the provisions of the LRA. It is binding on the parties and the Labour Court. The Labour Court does, however, have a residual discretion to apply and interpret the provisions of the Practice Manual, depending on the facts and circumstances of a particular case before the court.”

[17] In Coericius supra, the Applicant contended that it had no need to act in terms of clause 11.2.3 in relation to the “condonation ruling issue” because the whole of that record, was filed before the expiry of the 60-day period. Only the record in respect of the “unfair dismissal award issue” was problematic because it was incomplete. The court held that there is no room to invoke a distinction between that part of the record relevant to the condonation ruling issue and that part relevant to the unfair dismissal award issue. The court held that there is only one review application, not two. Because two decisions are the subject matter of two separate prayers does not mean there are two review applications. The court held further that:

‘it is intolerable to expect a Respondent to meet only part of a case; such a piecemeal approach is an anathema. Once the distinction cannot be made, the substratum of the appellant’s contention to examine the case on the footing of two reviews is fatally compromised. It follows that a substantive application to overcome the deemed withdrawal of the review application was necessary, contrary to the appellant’s principal contention. Because the respondent had raised squarely the issue that the review application was, in terms of clause 11.2.3, “deemed to be withdrawn” and sought an order dismissing it, the Labour Court had to give an answer. What does “withdrawn” in the context of clause 11.2.3 mean? Plainly, it must be understood to mean that the application is abandoned, and such an Applicant is no longer intent on seeking the relief in the review application.[7] As the Labour Appeal court has stated: “[22] The underlying objective of the Practice Manual is the promotion of the statutory imperative of expeditious dispute resolution. It enforces and gives effect to the Rules of the Labour Court and the provisions of the LRA. It is binding on the parties and the Labour Court. The Labour Court does, however, have a residual discretion to apply and interpret the provisions of the Practice Manual, depending on the facts and circumstances of a particular case before the court.”

[18] Similarly to this matter, the Applicant in Coericius[8] “stuck to its guns (as it had to, given its averments in reply), that the review could not be deemed dismissed, as the applicant had not been able to obtain the full record within the 60 -day period.”

[19] The court held:

“…. but a fair-minded examination of all the circumstances should have led to an appreciation that, despite the untidiness of the papers, the substance of a reinstatement and condonation application was before the court … In our view, the Labour Court ought to have found, on a charitable view of the papers, that a reinstatement application was before it and as such, was the answer in opposition to the respondent’s Rule 11 application...”[9]

[20] The Applicant has not filed an application to revive the deemed withdrawn review. The difference between the current matter and the Coericius matter supra is that in Coericius there was an application to revive the review, albeit premised on untidy papers, as referred to by the LAC. The Applicant, when filing the incomplete record did not indicate that same was the only relevant portion of the record for the purposes of the review application. If it indeed was the only relevant portion, it would not have been necessary for the Applicant to deliver a copy of the complete record at the later date, approximately 86 days after receipt of the notice in terms of rule 7A (5).

[21] In Sol Plaatjie supra, Prinsloo J held that an Applicant party must first determine whether the missing portion of the record is relevant for purposes of its review application; bearing in mind the Labour Court Rules require an Applicant to only serve the relevant portion of the record in its review application. My understanding of Prinsloo, J’s remarks is that the Applicant must assess the record and file only the relevant portion. This does not mean the applicant can simply file an incomplete record and later argue that the court should only consider the record that was filed within the 60-day period, as argued by the Applicant herein.

Costs

[22] I have had regard to the requirements of law and fairness in regard to an award of costs. Although both parties argued for costs, I am of the view that it is not a matter where a cost order is appropriate.

[23] In the results the following order is made:

Order

1 The review application is deemed to be withdrawn.

2 The Court does not have jurisdiction to entertain the review application, and the application is struck from the roll.

3 There is no order as to costs

R. Makoele

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Instructed by: Adv. F. Boda SC Nadeem Mahomed Incorporated. For the Fourth Respondent: Instructed by: Adv. MJ van As Fluxmans Incorporated.

[1] Practice Manual of the Labour Court of South Africa (Practice Manual). Effective 1 April 2013 at para 11.2.2.

[2] Practice Manual at para 11.2.3.

[2023] 1 BLLR 28 (LAC) at para 6. [4] (PR192/15) [2017] ZALCPE 11 (13 June 2017) at para 19.

[2023] 1 BLLR 28 (LAC) at para 6.

[4] (PR192/15) [2017] ZALCPE 11 (13 June 2017) at para 19.

[5] (2022) 43 ILJ 2727 (LAC) at para 14.

[6] (2019) 40 ILJ 798 (LAC) at para 22.

[7] Coericius (Id fn 3) at paras 7 to 9 and 13.

[8] Coericius (Id fn 3) at para 9.

[9] Coericius (Id fn 3) at paras 12 and 14.