Seopa v Commission for Conciliation, Mediation and Arbitration and Others (JR536/13) [2021] ZALCJHB 255 (24 August 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

case No: JR536/13

In the matter between:

NGOAKO JOHANNA SEOPA Applicant

and

THE COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION First

Respondent

COMMISSIONER L. CELLIER Second

Respondent

AIRCHEFS (PTY) LTD Third

Respondent

Enrolled: 4 August 2021

Delivered: 24 August 2021 (In view of the measures implemented as a result of the Covid-19 pandemic, this judgment was handed down electronically by circulation to the parties' representatives by email. The date for hand-down is deemed to be 24 August 2021)

JUDGMENT

PHEHANE, J

Introduction

[1] This application was enrolled for hearing oral argument on 4 August 2021.

[2] Before the aforesaid scheduled date of hearing, this Court was informed of the parties’ agreement that this application may be disposed of without oral argument as contemplated in paragraph 5.1 of the Practice Directive[1] of this Court.

[3] This is an application in terms of section 145 of the Labour Relations Act[2] (LRA), to review and set aside the arbitration award by the second respondent dated 13 February 2013. In the arbitration award, the second respondent found the dismissal of the applicant in 2012 to be both procedurally and substantively fair.

Background

[4] The brief factual background is that the applicant, a former shop steward, was employed by the third respondent as a “staff on attendance” or food handler. According the third respondent, an entity that provides catering to airlines, all staff were required to take an Hepatitis-A innoculation to avoid the possible contamination of food, following an instruction from the Department of Labour and Health.[3] It is common cause that the applicant refused to take the inoculation. She was suspended from duty, charged for insubordination

and was subsequently dismissed. The applicant contends that her dismissal was procedurally and substantively unfair. She accordingly

lodged an unfair dismissal dispute, the outcome of which, is the subject matter of this review application.

[5] On 16 May 2017, this application served before Mabaso, AJ, who ordered the third respondent to file an answering affidavit within 10 days of the Court order.

Point in limine

[6] The third respondent filed its answering affidavit on 30 May 2017, it appears, in compliance with the aforesaid Court order. In its answering affidavit, the third respondent raises a point in limine that the review application is deemed withdrawn as contemplated in clause 11.2.3 of the Practice Manual of this Court[4] (the Practice Manual).

[7] Clause 2.3 of the Practice Manual states that it supercedes all previous practice directives. It is therefore, applicable in casu.

[8] Clause 11.2.3 of the Practice Manual states as follows:

“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. 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 [applicant] should be afforded to file the record.”

(Emphasis added).

[9] The third respondent contends that the applicant is in non-compliance with clause 11.2.3 of the Practice Manual. The applicant contends, on the other hand, that the answering affidavit is filed out of time and it is not accompanied by an application for condonation. I am not persuaded that the answering affidavit is filed out of time in view of the Court order mentioned above.

[10] In response, on 14 June 2017, the applicant filed an affidavit “to oppose the third respondent’s answering affidavit”.[5] (I understand this to be the replying affidavit). As stated above, the applicant contends that the answering affidavit is filed out of time and accordingly requests this Court to disregard the answering affidavit, to hear the review application on a default basis, and to review and set aside the arbitration award.[6]

[11] The question that arises, premised on the Labour Appeal Court (LAC) decision in Macsteel Trading Wadeville v Francois van der Merwe & Others[7] (Macsteel), is whether, with regard to the provisions of clause 11 of the Practice Manual, this Court has the jurisdiction and power to adjudicate the point in limine, as it is raised against an application that is deemed withdrawn and has lapsed.

[12] An assessment of the time periods relating to the progress of this application and provisions of clause 11 of the Practice Manual is necessary.

12.1 The review application was launched on 22 March 2013.

12.2 The Commission for Conciliation, Mediation and Arbitration (CCMA) delivered a notice in terms of Rule 7A(3) on 2 and 8 April 2013.

12.3 On 9 September 2013, the applicant delivered a purported notice in terms of Rule 7A(6).

12.4 On 25 February 2014, the applicant delivered a Rule 7A(8)(b) notice.

12.5 The matter was enrolled for hearing on the unopposed motion roll on 28 March 2017 and was removed from the roll.

12.6 The matter was enrolled for hearing on 16 May 2017 and was removed from the roll.

12.7 The answering affidavit was delivered on 30 May 2017.

12.8 The replying affidavit was delivered on 14 June 2017.

[13] The record was filed after the 60 day time period and in non-compliance with clause 11.2.3 read with 11.2.2,[8] of the Practice Manual. In the absence of consent during the 60 day period mentioned in clause 11.2.2 (and failing such consent, in the absence of an application by the applicant to the Judge President for an extension of time within which to file the record), the application is deemed withdrawn.

[14] Further, in terms of clause 11.2.7 of the Practice Manual, a review application is by its nature, urgent. Thus, it is encumbent upon the applicant to ensure that all necessary papers are filed within 12 months of the date of the launch of the review application. This was simply not done in this case.

[15] The LAC in Macsteel stated at follows with regard to the binding nature of the Practice Manual and the Rules for the Conduct of Proceedings in the Labour Court:

‘[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.’ (Footnote omitted).

[16] The LAC stated that clause 11 of the Practice Manual was adopted to give effect to the requirement of expedition as espoused in the LRA and Rules.[9] At paragraph [19] the LAC stated as follows:

‘[19] Rule 11(4) provides that in the exercise of its powers and the performance of its functions, or any incidental matter, a reviewing court may act in a manner that it considers expedient in the circumstances to achieve the objects of the Act. This provision gives the Labour Court a wide discretion to take any course of action to achieve the objects of the Act.

(Emphasis added).

[17] In the circumstances, the file is archived and regarded as lapsed, as there is no application for the retrieval of the review application,

on good cause shown, from the archives.

[18] I note that the applicant filed her replying affidavit on 14 June 2017. She did nothing since then, to progress this application, which, in any event had, at that stage, already lapsed, been archived and deemed withdrawn. I note that the applicant approached the Registrar for a hearing date in March and October 2020. I take cognizance of the national lock down pursuant to the Regulations in terms of the Disaster Management Act[10] in light of the Covid-19 pandemic that may have affected the enrolment of this matter. However, long before the agoresaid Regulations were promulgated, this review application was deemed withdrawn, had lapsed and was archived.

[19] Clause 16 of the Practice Manual is instructive as to the circumstances in terms of which applications will be archived. It provides that the Registrar will archive a file in circumstances, where a period of six months has lapsed without any further steps being taken by the applicant since the filing of the application or the date of the last process filed, in instances relating to applications in terms of rule 7 and 7A. Futher, that where a file has been archived, it has the same consequence of the matter having been dismissed.

[20] The applicant, by virtue of the background pertaining to this review application, was a shop steward. In my view, she ought to have

appreciated the ethos of the LRA, which is that disputes ought to be resolved expeditiously.

[21] In order to achieve the objectives of the LRA in regard to the speedy resolution of disputes, I am of the view, the parties having agreed that this Court can decide this matter on the papers, that directing the third respondent to file an application terms of rule 11 to dismiss the review application will further delay the resolution of this matter which has already been delayed and which in any event, is deemed withdrawn and has lapsed.

[22] In the absence of an application to retrieve the file from the archives, this Court lacks jurisdiction to adjudicate a review application that is deemed withdrawn, has lapsed and is archived in terms of the provisions of clauses 11.2.2, 11.2.3, 11.2.7 and 16 of the Practice Manual. There was in my view, therefore, no need to file an answering affidavit. Whether or not the point in limine was raised, is immaterial, as this Court is enjoined to determine whether or not it has jurisdiction in view of the chronological sequence of events relating to the timley filing of the record as prescribed in the Practice Manual.

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

Order

1. The review application is struck off the roll.

2. There is no order as to costs.

MTM Phehane

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Inqubelaphambile

Trade Union

For the Third Respondent: Zwane Inc. Attorneys

[1] Dated 15 January 2021.

[2] Act 66 of 1995, as amended.

[3] Abitration Award, para 13, p 16.

[4][4] Dated 2 April 2013.

[5] pp 33 to 43.

[6] Paras 4 to 8, p 34.

[7] (2019) 40 ILJ 798 LAC.

[8] Item 11.2.2 reads as follows: ‘For the purposes of Rule 7A(6), record must be filed within 60 days of the date on which the aplicant is advised by the registrar that the record has been received. Rule 7A(6) in turn, provides as follows: ‘ The aplicant must furnish the registrar and each of the other parties with a copy of the record or portion of the record, as the case may be, and a copy of the reasons filed by the person or body’.

[8] Item 11.2.2 reads as follows: ‘For the purposes of Rule 7A(6), record must be filed within 60 days of the date on which the aplicant is advised by the registrar that the record has been received.

Rule 7A(6) in turn, provides as follows: ‘ The aplicant must furnish the registrar and each of the other parties with a copy of the record or portion of the record, as the case may be, and a copy of the reasons filed by the person or body’.

[9] At para [21].

[10] Act 57 of 2002.