SATAWU obo Kanana v Transnet Freight Rail (PR169/16) [2024] ZALCPE 20 (7 June 2024)

IN THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA

Not reportable

Case No: PR 169/16

In the matter between:

SATAWU obo AWB KANANA

Applicants

and

TRANSNET

FREIGHT RAIL

First Respondent

TRANSNET

BARGAINING COUNCIL

Second Respondent

COMMISSIONER DANIEL C. OOSTHUIZEN Third Respondent

Heard: 15 October 2023

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email and publication on the Labour Court’s website. The date and time for hand-down is deemed to be on 7 June 2024.

JUDGMENT

TLHOTLHALEMAJE, J

[1] Before the Court are two applications, viz, an application by the applicants to reinstate a review application subsequent to it being deemed withdrawn by virtue of the provisions of Clause 11.2.3 of the Practice Manual of the Court and subsequently archived under the provisions of Clause 11.2.7 of the Practice Manual; and a Rule 11 application by the first respondent (Transnet) to have the review application dismissed on account of lack of timeous prosecution.

[2] The applications are before the Court against the following background;

2.1 SATAWU’s member, Mr Kanana, was dismissed by Transnet on 13 April 2016 on account of four allegations of misconduct related to gross negligence. Having referred a dispute to the second respondent (TBC), the third respondent (Commissioner), issued an award on 22 August 2016 confirming the procedural and substantive fairness of Kanana’s dismissal.

2.2 SATAWU launched a review application on 12 September 2016, and Transnet had filed a Notice of Intention to Oppose the review on 27 September 2016. The TBC had on 19 October 2016, filed a Notice in compliance with Rules 7A(2)(b); 7A(3) and 7(9), advising SATAWU that the record of proceedings at the TBC was available. SATAWU conceded that the Rule 7A(5) Notice was received from the Registrar on 20 October 2016.

2.3 As at 15 February 2017, the Rule 7A(6) Notice had not been filed, and Transnet through its attorneys of record had sent correspondence to SATAWU informing it of the availability of the record. It does not appear that there was a response to this correspondence.

2.4 SATAWU alleged that it had on 25 April 2017, launched an application to compel the TBC and Commissioner to reconstruct the record since the disc previously received was defective and could not be transcribed.

2.5 On 16 May 2017, the TBC filed a second record and the Registrar sent a Rule 7A(5) Notice to the parties on 1 June 2017. Transnet’s attorneys of record had on 18 May 2017 sent correspondence to SATAWU and informed it that the second record was available and that it should be uplifted within ten (10) days in accordance with the rules of court and be transcribed.

2.6 Transnet contends that as at 28 August 2017 and in the absence of a transcribed record, the review application was deemed withdrawn. The whole of 2018 went by without any further action being taken on the matter by SATAWU, despite Moshoana J having issued an order on 24 October 2018 that the application be archived.

2.7 Further correspondence in July 2019 by Transnet’s attorneys of record to SATAWU reminding it of the availability of the record did not lead to the latter’s reaction. Further advice by the attorneys to SATAWU to seek a reinstatement of the review application in the light of it having been deemed withdrawn, or threats that an application to dismiss the review application would be launched did not yield any reaction. Further correspondence on 19 August 2019 to SATAWU still failed to elicit any reaction.

2.8 On 13 February 2023, the Registrar of the Court sent correspondence to SATAWU that the matter was archived on 24 October 2018 and in the absence of an application to reinstate it, it remains archived.

2.9 As at the filing of Transnet’s Rule 11 application on 13 August 2020, SATAWU had not delivered the record nor the reinstatement application. It was only on 26 May 2023 that such an application was launched, followed by the filing of the transcribed record. This was some further two months since the Registrar had reminded it that the matter was archived as per Moshoana J’s order of 24 October 2018.

[3] The provisions and effect of paragraph 11.2. of the Practice Manual of this Court[1] are fairly trite. Under paragraph 11.2.2, the applicant in a review application is afforded a period of 60 days within which to comply with Rule 7A(6) of the Rules of this Court upon being informed of the availability of the record by the Registrar of this Court. Where the applicant party is unable to comply with the 60 day time period for whatever reason, it must either seek an indulgence from the respondent party or where none is granted, to then approach the Judge President of this Court for an extension of time. Any such extension or indulgence cannot be granted long after the 60 day period had lapsed, and where the applicant was aware of that fact. This is so based on pre-emptive steps contemplated in paragraph 11.2.3 of the Practice Manual.

[4] Where the applicant party fails to meet the time frames or fails to utilise the pre-emptive provisions in paragraph 11.2.3 of the Practice Manual, the review application is deemed withdrawn, and can only be revived through a formal application for condonation, in which the defaulting party must demonstrate good cause[2].

[5] The above has since been reiterated in South African Police Services v Coericius and Others[3], where it was held that the provisions of paragraph 11.2.7 are indeed competent to revive a review application which has been deemed

withdrawn in terms of paragraph 11.2.3 of the Practice Manual. The failure however to utilise these pre-emptive provisions is material

when considering the conduct of the applicant and whether good cause was shown as a whole.

[6] Since good cause needs to be demonstrated prior to a review application being revived, this entails that the Court in the exercise of its discretion, must consider various factors including inter alia the degree of lateness, the explanation therefor, the prospects of success, and the importance of the matter[4]. In the end, the overall consideration is whether it is in the interest of justice to grant condonation.[5]

[7] Applying the above principles to the facts of this case, what is apparent is that other than the fact that there were inordinate delays between the filing of the review application and the transcribed record, SATAWU took even longer to file an application

for reinstatement despite the knowledge that the application had been deemed withdrawn or at most archived. The calculations of Transnet in regards to these delays between the filing of the review application and the filing of the reinstatement application translates into more than six years, during which time it is contended that SATAWU failed to take any reasonable steps to prosecute the review application.

[8] The issue is whether in seeking the reinstatement of the review application, the applicants in the light of the length of the inordinate delays, have proffered any reasonable or acceptable explanation. In Grootboom v National Prosecuting Authority and Another[6] it was held that in an application for condonation, a party seeking an indulgence must make out a proper case which reveals a full

explanation for the delay, and that such an explanation must be reasonable.

[9] The explanation for the delay in the founding affidavit as deposed to by Kanana in my view fails on all fronts as an explanation, let alone a reasonable or acceptable one. In effect there is no explanation before the Court. A proper reading of the founding affidavit indicates that the TBC and Commissioner are blamed for the delays as they failed to dispatch the record timeously. Just to recap, SATAWU confirmed having been initially advised by the Registrar on 20 October 2016 of the availability record from the TBC. Some six months later on 25 April 2017, SATAWU allegedly launched an application to compel the TBC and Commissioner to reconstruct the record. The six months delay is hardly explained as it is not known what it is that SATAWU did to obtain a proper disc. From annexure ‘BK2’ to the founding affidavit, it was only on 20 March 2017 that SATAWU had sent correspondence to the TBC complaining about the record. Equally from annexure ‘BK3’, the transcribers had only on 24 April 2017 confirmed that the disc was defective for the purposes of transcription. The complaint to the TBC and confirmation by the transcribers however took place within the five – six months after defective record in the form of a disc was received. The delay for that period remains unexplained.

[10] Kanana further sought to attribute the delays to the transcribers, and it is not clear why this was the case, and if so, what SATAWU did to attend to the delays during the six months period. Despite having filed an application to compel the TBC and the Commissioner, it is not known whether that application was prosecuted or not. Transnet had in any event denied knowledge of any such application as it was never served on it, and further that this allegation was in any event not pleaded in the founding affidavit.

[11] All that Kanana could aver was that further delays were attributed to the Covid pandemic. This bearing in mind that the pandemic and subsequent lock-down restrictions occurred from March 2020. This was some further period of over two years since communication with the transcribers or the TBC. It is nonetheless of importance to point out that as at the time that the pandemic occurred and the country was under lock-down, a second and proper record had been filed by the TBC on 16 May 2017, and the Registrar had sent a Rule 7A(5) Notice to the parties on 1 June 2017. Thus, the pandemic occurred some two and a half years after SATAWU was, or ought to have been in possession of the second record. Again, there is no explanation for inaction for that period.

[12] The inaction of SATAWU for the periods in question until 26 May 2023 when an application to reinstate the review application and the transcribed record was eventually delivered has to be viewed against a number of factors including consistent requests and reminders by Transnet’s attorneys of record to it for some action on the review and the record; the Registrar’s notice of 13 February 2023 reminding SATAWU that the matter was archived on 24 October 2018; and the threats by Transnet’s attorneys in 2019 that a Rule 11 application would be launched. Even the launch of such an application on 13 August 2020 failed to jolt SATAWU into action.

[13] As at May 2023 when the transcribed record was filed, and bar any delays due to the defective nature of the initial record in the form of a disc that was filed by the TBC, it had been almost seven years since Kanana was dismissed and the review application launched. In Govender and Others v Commission for Conciliation, Mediation and Arbitration and Others[7], the Labour Appeal Court recently reiterated that added to the factors applicable to condonation applications is the consideration that employment disputes should be dealt with expeditiously, as a delay in the resolution of labour disputes undermines the object of the LRA, and that “any determination of the issue of good cause must always be considered against the backdrop of this fundamental principle”. This was so in that review applications are by their nature, urgent and must be treated with a degree of diligence and promptness[8].

[14] It follows that other than the provisions of paragraph 11.2.3 having taken effect, the provisions of 11.2.7 of the Practice Manual equally meant that the review application was also archived as confirmed by the order of Moshoana J on 24 October 2018. During all the delays to the extent that SATAWU may have had problems, at no point were the pre-emptive provisions under clause 11.2.3 utilised in either seeking an indulgence from Transnet or the intervention of the Judge President. In the end, SATAWU has not proffered any reasonable or acceptable explanation for the delays in either filing the transcribed record of proceedings or the delays in bringing the application to reinstate when it was informed by Transnet as far back as 2017 that the review application was deemed withdrawn. Equally so, it failed to act as soon as it was made aware that there was a need to seek a reinstatement of the review application.

[15] Other than a lack of any reasonable explanation in the founding affidavit, Kanana does not even address any of the other factors necessary to demonstrate ‘good cause’. Hardly anything is said about his prospects of success on the merits and issues of prejudice

[16] In summary, SATAWU has not demonstrated good cause why its application for review which was archived should be reinstated. This conclusion is based on its complete failure to give an account of the extensive delay in filing the record; the delay in bringing this application to revive the review application, and in circumstances where it had ignored Transnet’s request for action to be taken on the review, or where there was a court order issued that the matter was archived, or where threats to bring the Rule 11 application were made and ignored. Worst no averments whatsoever were made regarding Kanana’s prospects of success in the main review application. It follows that SATAWU’s inordinate and unexplained delays effectively undermined the object of the LRA which inter alia required of review applications to be treated with a degree of diligence and promptness.

[17] In the end, it is Transnet that stands to suffer prejudice because of SATAWU’s nonchalant approach in pursuing the review application. If the reinstatement application was to be granted, it is Transnet that would be prejudiced in that it would be compelled to defend a matter that arose in 2016, and where SATAWU and Kanana had effectively been supine for a period of seven years since the latter’s dismissal, and where nothing in this application is said about his prospects of success on the merits, or why it is said that the award of the Commissioner is susceptible to a review. Against these considerations, the overall interests of

justice dictate that condonation for the late filing of the transcribed record be refused, and the application to reinstate the

review application be dismissed.

[18] In the light of the above conclusions, and further to the extent that the Rule 11 application was essentially based on the same set of facts and submissions as in the application to reinstate the review, it follows that any determination of the Rule 11 application is superfluous in the light of the consequences of a refusal to reinstate the review application.

[19] Transnet sought a costs order against SATAWU in the light of its shabby handling of the review application since 2016 despite Transnet’s probing and numerous requests and reminders over a period of six years. However taking into account the requirements of law and fairness, the circumstances of this case and the ongoing relationship between SATAWU and Transnet, I am of the view that a costs order is not warranted in this matter.

[20] In the premises, the following order is made:

Order:

1. The Applicants’ application to condone the late filing of the record of arbitration proceedings is dismissed.

2. The Applicants’ application to reinstate the review application is dismissed.

3. Consequently, the review application is also dismissed.

4. There is no order as to costs.

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicants: Mr H. Sinama, Union Official

For the First Respondent: Mr T Majang, of Majang INC Attorneys.

[1] Clause 11.2 reads: ‘11.2 Applications to review and to set aside arbitration awards and ruling 11.2.1 Once the registrar has notified an applicant in terms of Rule 7A (5) that a record has been received and may be uplifted, the applicant must collect the record within seven days. 11.2.2 For the purpose 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. 11.2.3 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 and consent has been given. The application must be accompanied by proof of service on all other parties, and answering and replying affidavits may be filed within the time limits prescribed by Rule 7. The Judge President will then allocate the file to a judge for a ruling, to be made in chambers, on any extension of time that the respondent should be afforded to file the record. 11.2.7 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 of 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 be archived or be removed from the archive.’

[1] Clause 11.2 reads:

‘11.2 Applications to review and to set aside arbitration awards and ruling

11.2.1 Once the registrar has notified an applicant in terms of Rule 7A (5) that a record has been received and may be uplifted, the applicant must collect the record within seven days.

11.2.2 For the purpose 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.

11.2.3 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 and consent has been given. The application must be accompanied by proof of service on all other parties, and answering and replying affidavits may be filed within the time limits prescribed by Rule 7. The Judge President will then allocate the file to a judge for a ruling, to be made in chambers, on any extension of time that the respondent should be afforded to file the record.

11.2.7 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 of 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 be archived or be removed from the archive.’

[2] Samuels v Old Mutual Bank (2017) 38 ILJ 1790 (LAC) at paras 4 & 17; see also: Zono v Minister of Justice and Correctional Services in re: Minister of Justice and Correctional Services v Zono and Others [2020] ZALCJHB 215; [2020] 11 BLLR 1160 (LC) where it was held: [17] An application for reinstatement of a review application deemed to, have been withdrawn is, in essence, an application for condonation. It is incumbent on the applicant to show good cause why, in this case, the record of the proceedings under review was not filed within the prescribed time limit. Condonation is not there merely for the asking, nor are applications for condonation a mere formality (see NUMSA v Hillside Aluminium [2005] ZALC 25; [2005] 6 BLLR' 601 (LC); Derrick Grootboom v National Prosecuting Authority & another [20.14] 1 BLLR (CC)). A party seeking condonation must make out a case for the indulgence sought and bears the onus to satisfy the court that condonation should be granted.

[2] Samuels v Old Mutual Bank (2017) 38 ILJ 1790 (LAC) at paras 4 & 17; see also: Zono v Minister of Justice and Correctional Services in re: Minister of Justice and Correctional Services v Zono and Others [2020] ZALCJHB 215; [2020] 11 BLLR 1160 (LC) where it was held:

[17] An application for reinstatement of a review application deemed to, have been withdrawn is, in essence, an application for condonation. It is incumbent on the applicant to show good cause why, in this case, the record of the proceedings under review was not filed within the prescribed time limit. Condonation is not there merely for the asking, nor are applications for condonation a mere formality (see NUMSA v Hillside Aluminium [2005] ZALC 25; [2005] 6 BLLR' 601 (LC); Derrick Grootboom v National Prosecuting Authority & another [20.14] 1 BLLR (CC)). A party seeking condonation must make out a case for the indulgence sought and bears the onus to satisfy the court that condonation should be granted.

[3] [2022] ZALAC 104; [2023] 1 BLLR 28 (LAC) at para 10.

[4] See Melane v Santam Insurance Co. Ltd 1962 (4) SA 531 (A) at 532B – E.

[5] See Brummer v Gorfil Brothers Investments (Pty) Ltd [2000] ZACC 3; [2000] (2) SA 837 (CC) at 839 F.

[6] [2013] ZACC 37; 2014 (2) SA 68 (CC) at paras 22 – 23; see also Moila v Shai N.O. and Others (2007) 28 ILJ 1028 (LAC) at para 34 where it was held: ‘I do not have the slightest hesitation in concluding that this is a case where the period of delay is excessive and the appellant's

purported explanation for the delay is no explanation at all. I accept that the case is very important to the appellant. However,

the weight to be attached to this factor is too limited to count for anything where the period of delay is as excessive as is the case in this matter and the explanation advanced is no explanation at all. If ever there was a case in which one can conclude that good cause has not been shown for condonation without even considering the prospects of success, then this is it. Where, in an application for condonation, the delay is excessive and no explanation has been given for that delay or an “explanation” has been given but such “explanation” amounts to no explanation at all, I do not think that it is necessary to consider the prospects of success.’

[6] [2013] ZACC 37; 2014 (2) SA 68 (CC) at paras 22 – 23; see also Moila v Shai N.O. and Others (2007) 28 ILJ 1028 (LAC) at para 34 where it was held:

‘I do not have the slightest hesitation in concluding that this is a case where the period of delay is excessive and the appellant's

purported explanation for the delay is no explanation at all. I accept that the case is very important to the appellant. However,

the weight to be attached to this factor is too limited to count for anything where the period of delay is as excessive as is the case in this matter and the explanation advanced is no explanation at all. If ever there was a case in which one can conclude that good cause has not been shown for condonation without even considering the prospects of success, then this is it. Where, in an application for condonation, the delay is excessive and no explanation has been given for that delay or an “explanation” has been given but such “explanation” amounts to no explanation at all, I do not think that it is necessary to consider the prospects of success.’

[7] (DA 2/2022) [2024] ZALAC 6; [2024] 5 BLLR 453 (LAC) (26 February 2024)

[8] At para 58