Shoba-Zikhali v Technology Innovation Agency and Others (D 1462/2019) [2022] ZALCD 1 (22 February 2022)

THE LABOUR COURT OF SOUTH AFRICA

(HELD AT DURBAN)

Of interest to other Judges

CASE NO: D 1462/2019

In the matter between:

DR LNN SHOBA-ZIKHALI

Applicant

and

TECHNOLOGY INNOVATION AGENCY

First Respondent

COMMISSION FOR CONCILIATION

MEDIATION & ARBITRATION

Second Respondent

CM DLAMINI N.O

Third Respondent

Date of hearing: 17 February 2022

Date of judgment: 22 February 2022

JUDGMENT

VAN NIEKERK J

[1] The applicant seeks to review and set aside a ruling issued by the third respondent (the commissioner). In her ruling, the commissioner refused to condone the late referral of an unfair dismissal dispute to the CCMA. It is common cause that the referral was a day late. The commissioner considered that notwithstanding the minimal delay, the applicant had failed to submit a satisfactory explanation for the delay, and that she had failed to present ‘convincing prospects of success in her claim’. Further, she found that should condonation be granted, the prejudice to the first respondent outweighed that to the applicant.

[2] At the hearing of the application, the first respondent’s representative, Mr Jugwanth, raised a jurisdictional objection to the matter proceeding, based on what he contended was a failure by the applicant to file the transcript of the proceedings under review within the required time limit.

[3] The question whether the record was furnished timeously to the Registrar and other parties as required by Rule 7A (6) is a fact or element which goes to establishing the jurisdiction of this Court to hear the review application. In Ellerine Holdings Ltd v Commission for Conciliation, Mediation and Arbitration and others (2002) 23 ILJ 1282 (LC), the Court held:

Where the non-compliance relates to a statutory provision, i.e. as set out in an Act, then failure to comply with those provisions goes to jurisdiction. In such cases (for example where time-limits relate to jurisdiction) an application must be made to court to condone the non-compliance.

[4] The same principle applies to non-compliance with a measure such as the Rules of this Court or any provision of the Practice Manual at least where, as in the present case, an objection is raised.

[5] Rule 7A (6) states the following:

(6) The applicant 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.

[6] The Practice Manual promotes the statutory imperative of expeditious dispute resolution, and is binding on the parties and on this court (see Macsteel Trading Wadeville v Van der Merwe NO and others (2019) 40 ILJ 798 (LAC)). Clause 11.2 of the Practice Manual amplifies Rule 7A (6) and reads as follows:

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 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.

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….

[7] The registrar received the record from the CCMA on 23 December 2019. On the same day, the parties were advised that the record was available for collection. The transcribed record was filed in the office of the Registrar on 17 March 2020. First, Mr Jugwanth submitted that the record was filed outside of the 60-day period established by clause 11.2 of the Practice Manual. Secondly, Mr Jugwanth recorded that the record had been served on the first respondent only in July 2020. On either leg, so Mr Jugwanth submitted, the applicant had failed to comply with clause 11.2.2 and the application for review was deemed withdrawn.

[8] There is no merit to the first part of Mr Jugwanth’s submission. The definition of ‘day’ in the Practice Manual is a court day. For the purposes of clause 11.2, the 60-day period established by clause 11.2.2 expired on 19 March 2020. The date stamp on the record indicates that the record was received at the office of the Registrar, as I have indicated, on 17 March 2020, and thus within the 60-day time limit by a margin of two days. The question that arises then is notwithstanding the Registrar having received the record within the 60-day period, the applicant can be said to have complied

with Rule 7A (6), since that sub rule requires both that the record be furnished both to the Registrar and ‘each of the other

parties’ to the review application within the 60-day period.

[9] Mr Japhta, who appeared for the applicant, did not dispute that the record had been served on the first respondent only in July 2020, and ascribed this to the fact that the first respondent’s attorneys of record had moved office. That explanation, proffered as it was from the Bar and in the absence of any application for condonation, does not assist the applicant at this stage.

[10] Rule 7A (6) refers to the obligation to ‘furnish’ the Registrar and other parties with a copy of the transcribed record, while clause 11.2.2 of the Practice Manual requires the applicant to ‘file’ the record. The only sensible interpretation to be accorded clause 11.2.2 is that the obligation to ‘file’ the record is no different to the obligation to ‘furnish’ the record for the purposes of Rule 7A (6). The Practice Manual was intended to complement and supplement the Rules, and to flesh out in practical terms the obligations that the Rules create. To suggest that clause 11.2.2 requires an applicant to do no more than file the record with the Registrar within the prescribed period does violence to the generally applicable requirement in the Rules that establish an obligation to ‘deliver’ process, defined in Rule 1 to mean ‘to serve on other parties and file with the registrar’. The word ‘furnish’ used as it is in Rule 7A (6) carries a

similar meaning. The furnishing of the transcribed record to other respondent parties to the review application triggers the time period for the actions required by Rule 7A (8), and enables any respondent to consider whether to oppose the review application and if so, to commence preparation of its opposition. Given the nature of the test applied on review, which in essence requires the Court to scrutinize the record and determine whether, on the basis of the evidence disclosed, the commissioner’s decision is one that a reasonable decision-maker could reach, the Rules and the Practice Manual place a premium on the timeous furnishing of the record both to the Registrar and to respondent parties.

[11] The applicant does no dispute that the transcribed record was furnished to the first respondent months late. There is no record of any request for any extension within which to furnish the record, nor is there any record of any request addressed to the Judge President for a direction. In the absence of compliance with Rule 7A (6) read with clause 11.2 of the Practice Manual, the applicant is deemed to have withdrawn the review application. There is thus nothing that serves before the court, and the application stands to be removed from the roll.

[12] In regard to costs, the Constitutional Court has recently made clear that in this Court, costs do not follow the result, and that while the Court has a discretion to make orders for costs, it should be cautious in matters involving individual applicants not to allow the spectre of an adverse costs order effectively to close the doors of the Court on them. Further, the jurisdictional point raised by the first respondent was raised on the morning of the hearing, and not foreshadowed in its papers. In these circumstances, for the purposes of section 162 of the LRA, the requirements of the law and fairness are best served by each party bearing its own costs.

I make the following order:

1. The application is removed from the roll.

André van Niekerk

Judge of the Labour Court

APPEARANCES

For the applicant: Mr PO Japhta. Japhta Attorneys

For the first respondent: Mr SS Jugwanth, Jugwanth Attorneys