Road Accident Fund v Commission for Conciliation, Mediation And Arbitration and Others (J701/16) [2016] ZALCJHB 297 (8 August 2016)

THE LABOUR COURT OF SOUTH AFRICA,

JOHANNESBURG

Not Reportable

Case no: J701/16

In the matter between

ROAD ACCIDENT FUND Applicant And COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION First Respondent COMMISSIONER PHALA N.O. Second Respondent ELIAS MOSENEKE Third Respondent DORIS GOLELE Fourth Respondent

Decided in Chambers

Delivered: 8 August 2016

JUDGMENT- LEAVE TO APPEAL

TLHOTLHALEMAJE, J

[1] This application for leave to appeal represents the seventh round of sustained litigation between the Applicant and the Third and Fourth Respondents (The Employees). It all started on 27 October 2014 when Commissioner Thee of the CCMA granted the Employees condonation for their late referral of a dispute to the CCMA. The first round of this litigation saga was an application to review and set aside the condonation ruling. That application came before Matlejoane AJ on 3 July 2015. The second round came prior to judgment in the review application being delivered by way of an urgent application before Van Niekerk J on 13 August 2015. It had resulted in a consent order in terms of which the arbitration proceedings before the CCMA were postponed sine die pending the final determination of the review application. The review application was dismissed on 23 December 2015. The third round was an application for leave to appeal against Matlejoane AJ’s judgment, which was dismissed on 18 March 2016.

[2] The fourth round came on 17 March 2016 by way of an urgent application to again postpone the arbitration proceedings before the CCMA. The matter came before Steenkamp J on 22 March 2016 and was struck off the roll on account of lack of urgency. The fifth round came by way of a petition for leave to appeal against Matlejoane AJ’s refusal to grant the application for leave to

appeal. That matter is still pending before the Labour Appeal Court.

[3] The sixth round came about when the Applicant again approached this court on 26 April 2016 on an urgent basis seeking an order in the following terms;

1.1 ‘The interdict granted by his Lordship the Honourable Justice Van Niekerk dated 13 August 2015 be renewed and/or revived and the arbitration proceedings scheduled on 16 to 20 May 2016 under CCMA under case number GAJB 9388 – 14 be interdicted and postponed pending the final determination of a petition and finalisation of any subsequent further petition or appeal against the judgment of Matlejoane AJ.

1.2 Alternatively, that the arbitration proceedings scheduled on 16 to 20 May 2016 under CCMA case number GAJB9388/14 be stayed pending the final determination of the petition and any subsequent petition or appeal against the judgment of the Honourable Acting Justice Matlejoane’.

[4] Judgment was delivered on 06 May 2016 in terms of which the application was struck off the roll on account of lack of urgency. Furthermore, the Applicant was ordered to pay to the Third and Fourth Respondents, the costs of that application. On 24 May 2016, the Applicant had launched an application for leave to appeal against the whole of my judgment and order. The dies came and went on 13 June 2016 without an opposition having been filed.

[5] The Applicant relies upon a variety of grounds in seeking leave to appeal, contending inter alia, that there are reasonable prospects that another Court may come to a different conclusion as the court a quo erred in a number of respects.

[6] Central to this application however is whether the order granted as above is appealable. Section 166 (1) of the Labour Relations Act[1] provides that; ‘Any party to any proceedings before the Labour Court may apply to the Labour Court for leave to appeal to the Labour Appeal Court against any final judgment or final order of the Labour Court.’

[7] It is thus trite that where a matter is struck off the roll on account of lack of urgency, the applicant party will have several possible options available. It may approach the Court again for the same relief if circumstances change so that it can establish the requisite urgency, or it may approach the Court seeking the same relief but with greater compliance with the rules, or it may choose to re-launch the application for substantive relief in the ordinary course[2]. Ultimately, an applicant must proceed to set the matter down on the normal roll[3].

[8] The Supreme Court of Appeal in Charlton v Parliament of the Republic of South Africa[4] in considering principles governing appealability held that;

‘In terms of s 20(1) of the Supreme Court Act 59 of 1959, only ‘judgments’ and ‘orders’ (and not merely ‘rulings’) are appealable. In Zweni v Minister of Law and Order, the test for what is meant by a ‘judgment’ or ‘order’ was expressed as follows: ‘first, the decision must be final in effect and not susceptible of alteration by the Court of first instance; second, it must be definitive of the rights of the parties; and third, it must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings’ (Citations omitted)

[9] An order striking off a matter on account of lack of urgency ordinarily lacks an element of finality, and is not definitive of the rights of the parties. It does not therefore close the proverbial litigation door to the applicant unless it can be said that such an order had “a very definitive bearing” on the determination of the parties’ rights[5], i.e., disposes of a substantial portion of the relief claimed in the main proceedings.

[10] In this case, the Applicant contends that the Court made definitive findings in the judgment on the merits of the application, which impacts adversely on it in the continued litigation, whilst the ultimate order was only to strike the matter of the roll for lack of urgency. I have reflected on my judgment and the numerous grounds for leave to appeal as advanced by the Applicant. Inasmuch as remarks were made in the judgment in regards to the merits of the main application, and further to the extent that certain remarks were made within a determination of whether the matter was urgent or not, these cannot in my view be construed as definitive pronouncements on the merits of the main application, nor can a conclusion be reached that a substantial portion of the Applicant’s claim has been disposed of.

[11] Having further reflected on my judgment, there is no basis for a conclusion to be reached that my order was final in effect, or was definitive of the rights of the parties. To this end, and to the extent that the matter was purely struck off the roll, the Applicant is still entitled to exercise the options available to it in pursuing this matter. It therefore follows that this application ought to be dismissed.

Order:

The application for leave to appeal is dismissed.

Tlhotlhalemaje, J

Judge of the Labour Court of South Africa

[1] Act 66 of 1995

[2] Shetu Trading CC v Chair, Tender Board of Namibia & Others 2012 (1) NR 162 (SC) at para [15]; See also Commissioner, South African Revenue Services v Hawker Air Services (Pty) Ltd; Commissioner, South African Revenue Services v Hawker Aviation Partnership and Others [2006] ZASCA 51; 2006 (4) SA 292 (SCA) at para [9], where Cameron JA (as he then was) held that; ‘One of the grounds on which Patel J dismissed the applications was that at their inception they had lacked urgency. This was erroneous.

Urgency is a reason that may justify deviation from the times and forms the rules prescribe. It relates to form, not substance, and is not a prerequisite to a claim for substantive relief. Where an application is brought on the basis of urgency, the rules of court permit a court (or a judge in chambers) to dispense with the forms and service usually required, and to dispose of it ‘as to it seems meet’ (Rule 6(12)(a)). This in effect permits an urgent applicant, subject to the court’s control, to forge its own rules (which must ‘as far as practicable be in accordance with’ the rules). Where the application lacks the requisite element or degree of urgency, the court can for that reason decline to exercise its powers under Rule 6(12)(a). The matter is then not properly on the court’s roll, and it declines to hear it. The appropriate order is generally to strike the application from the roll. This enables the applicant to set the matter down again, on proper notice and compliance’

[2] Shetu Trading CC v Chair, Tender Board of Namibia & Others 2012 (1) NR 162 (SC) at para [15]; See also Commissioner, South African Revenue Services v Hawker Air Services (Pty) Ltd; Commissioner, South African Revenue Services v Hawker Aviation Partnership and Others [2006] ZASCA 51; 2006 (4) SA 292 (SCA) at para [9], where Cameron JA (as he then was) held that;

‘One of the grounds on which Patel J dismissed the applications was that at their inception they had lacked urgency. This was erroneous.

Urgency is a reason that may justify deviation from the times and forms the rules prescribe. It relates to form, not substance, and is not a prerequisite to a claim for substantive relief. Where an application is brought on the basis of urgency, the rules of court permit a court (or a judge in chambers) to dispense with the forms and service usually required, and to dispose of it ‘as to it seems meet’ (Rule 6(12)(a)). This in effect permits an urgent applicant, subject to the court’s control, to forge its own rules (which must ‘as far as practicable be in accordance with’ the rules). Where the application lacks the requisite element or degree of urgency, the court can for that reason decline to exercise its powers under Rule 6(12)(a). The matter is then not properly on the court’s roll, and it declines to hear it. The appropriate order is generally to strike the application from the roll. This enables the applicant to set the matter down again, on proper notice and compliance’

[3] See also PT Operational Services (Pty) Ltd v RAWU obo Ngwetsana,( 2013) 34 ILJ 1138 (LAC) at para 35, where the LAC per Musi AJA (as he then was), held that; “Although I agree that the appropriate order in a matter where urgency has not been shown should be striking the matter from the roll, it seems to me that even where the word ‘dismissed’ is used it does not necessarily mean that the dismissal amounts to a final order. One will still have to enquire, where there is doubt, whether the matter was dismissed on the merits or not. If it was dismissed on the merits then the order is final. If not, then it is not final. A finding that a matter is not urgent does not mean that there are no merits in the applicant’s case. Even if a matter is dismissed for lack of urgency it can and should be re-enrolled. To reason otherwise would be to allow form to triumph over substance.”

[3] See also PT Operational Services (Pty) Ltd v RAWU obo Ngwetsana,( 2013) 34 ILJ 1138 (LAC) at para 35, where the LAC per Musi AJA (as he then was), held that;

“Although I agree that the appropriate order in a matter where urgency has not been shown should be striking the matter from the roll, it seems to me that even where the word ‘dismissed’ is used it does not necessarily mean that the dismissal amounts to a final order. One will still have to enquire, where there is doubt, whether the matter was dismissed on the merits or not. If it was dismissed on the merits then the order is final. If not, then it is not final. A finding that a matter is not urgent does not mean that there are no merits in the applicant’s case. Even if a matter is dismissed for lack of urgency it can and should be re-enrolled. To reason otherwise would be to allow form to triumph over substance.”

[4] 2012 (1) SA 472 (SCA) at para [17]; See also Qavile, SC v Commission for Conciliation Mediation and Arbitration and Others (PA2/02) [2002] ZALAC 21 (4 October 2002) at para [10]; Guardian National Insurance Company Ltd v Searle [1999] 2 All SA 151 (A)

[5] See Aussenkehr Farms (Pty) Ltd and Another v Minister of Mines and Energy and Another (SA6/02, SA6/02) [2003] NASC 8 (5 March 2003) as also referred to in Shetu Trading CC at para [43] within the context of refusal of a prayer for condonation on the basis of urgency