South African Police Service v Bevan NO and Others (JR802/2019) [2021] ZALCJHB 68 (28 May 2021)

The Labour Court of South Africa

(Held at Johannesburg)

Not reportable

Case No: JR 802/2019

In the matter between:

SOUTH AFRICAN POLICE SERVICE

Applicant

and

ANNELIE BEVAN N.O

First Respondent

MATEBESI GA

Second Respondent

SAFETY AND SECURITY SECTORAL

BARAGAINING COUNCIL

Third Respondent

SHERIFF OF THE HIGH COURT: POTCHEFSTROOM Fourth Respondent

Hearing: 27 May 2021

Date of judgment: 28 May 2021. Judgment delivered by email.

JUDGMENT

VAN NIEKERK J

[1] The main application that serves before the court is an application to review and set aside an arbitration award issued by the third respondent (the arbitrator) on 31 July 2017. In her award, the arbitrator found that the applicant’s dismissal was procedurally and substantively unfair, and reinstated him with retrospective effect. There are two interlocutory applications. The first is an application in terms of Rule 11 to dismiss the review on account of a failure to file the record within the prescribed time limit and other procedural lapses; the second is an application to reinstate the review. The latter application was necessitated by the deemed withdrawal of the review application on account of a failure by the applicant to lodge the record of the proceedings under review timeously. When the matter was called, I directed that argument be

confined to the application for reinstatement, since unless and until that application had been granted, there was no application that served before the court. Put another way, if the reinstatement of the application is refused, then the status of the review application remains one of an application withdrawn by the applicant. In that case, as the above authorities indicate, there is no application before the court and the application to dismiss the review is rendered moot.

[2] Paragraph 11.2 of the Practice Manual reads as follows:

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11.2.3 If the applicant fails to file the record within the prescribed period, the applicant will be deemed to have withdrawn the application, unless the applicant has during that period requested that the respondent’s consent for an extension of time and consent has been given.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, applied to the Judge President in Chambers for an extension of time.

[3] In the recent case of Overberg District Municipality v IMATU & others (C 157/18, 8 June 2020), my colleague Lagrange J summarised the application of these provisions. He observed that prior to the advent of the practice manual, there was no time limit prescribed for the filing of a record of proceedings under review, and that the 60-day time limit was introduced to minimize delays in the prosecution of review applications. The practice manual is binding. In Samuels v Old Mutual Bank (2017) 38 ILJ 1790 (LAC), the LAC stated:

(15) The Practice Manual is not intended to change or amend the existing Rules of the Labour Court but to enforce and give effect to the rules, the Labour Relations Act as well as various decisions of the courts on the matters addressed in the practice manual and the rules. Its provisions therefore are binding. The Labour Court’s discretion in interpreting and applying the provisions of the Practice Manual remains intact, depending on the facts and circumstances of a particular matter before the court.’

[4] In Macsteel Trading Wadeville v Van der Merwe N.O and others (2019) 40 ILJ 798 (LAC), the LAC noted that the underlying objective of the practice manual is the promotion of the statutory imperative of expeditious dispute resolution (referring to the decision of the Constitutional Court in Toyota Motors (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others [2016] 3 BLLR 217 (CC)). At paragraph 23 of the judgment, the LAC noted ‘It [the practice manual] is binding on the parties and the Labour Court’

[5] It is also clear from Samuels and Macsteel that when a review application lapses, it is deemed withdrawn or dismissed in terms of clauses 11.2.3, 11.2.7 or 16.3 respectively, it remains so unless and until the applicant succeeds in an application to reinstate or retrieve the application, thus restoring its status as a pending application (see Overberg Municipality at paragraph 24). Overberg Municipality concerned, as does this case, the application of clause 11.2.3, and a failure to file the record of proceedings under review within the prescribed 60-day period. Lagrange J said the following (footnotes omitted):

[25] In this application the applicable deeming provision is clause 11.2.3. To date, there are no decisions of the Labour Appeal Court dealing with the interpretation of clause 11.2.3 as such. However, the LAC has indicated its approach to review applications which are deemed to have lapsed if all the necessary papers in a review application have not been filed within twelve months’ of launching an application. In, Samuels the LAC set out the steps to be taken:

‘(4) In order for a file to be brought back to life, an interested party has to act in terms of clause 16.2 which requires an application, on affidavit, for the retrieval of the file on notice to all other parties to the dispute to be launched. The provisions of rule 7 will apply to such an application. This is such an application brought by the appellant in the court a quo. Clause 16.3 provides that:

‘Where a file has been placed in archives, it shall have the same consequences as to further conduct by any respondent party as to the matter having been dismissed.’

[26] In Samuels case, a review application had been archived after lengthy delays by the applicant, which were mainly the fault of the CCMA. The LAC granted the applicant leave to proceed with the review application. The court set out the approach to be adopted when considering whether to resurrect the file from its archived state:

‘(17) In essence, an application for the retrieval of a file from the archives is a form of an application for condonation for failure to comply with the court rules, time frames and directives. Showing good cause demands that the application be bona fide; that the applicant provide a reasonable explanation which covers the entire period of the default; and show that he/she has reasonable prospects of success in the main application, and lastly, that it is in the interest of justice to grant the order. It has to be noted that it is not a requirement that the applicant must deal fully with the merits of the dispute to establish reasonable prospects of success. It is sufficient to set out facts which, if established, would result in his/her success. In the end, the decision to grant or refuse condonation is a discretion to be exercised by the court hearing the application which must be judiciously exercised.’

[6] In Overberg, the court also gave consideration to the relevance of steps taken by the applicant subsequent to the review application being deemed withdrawn. Lagrange J held that an applicant party that has been dilatory and is seeking an indulgence to revive a review application must necessarily satisfy the court that in the interim, it has done what it can to remedy its failure which led to the application being deemed inactive in the first place and done whatever else it could reasonably do so that the matter would be ready for hearing if reinstated. In other words, steps taken during the time that the application is inactive have a material bearing on the success of attempts to revive it (see paragraph 38 of the judgement). What was required was for the applicant to demonstrate that it acted promptly in launching the reinstatement application and that it took further professional steps in a bone fide attempt to ensure the expeditious finalisation of the review if reinstatement is permitted (see paragraph 39).

[7] In the present instance, the review application was filed on 23 April 2019, within the proscribed six-week period. The record of the proceedings under review were lodged with the registrar on or about 15 May 2019, and collected on 29 May 2019. The 60-day period expired on or about 22 August 2019. The record was filed on 13 September 2019, 12 days late. ‘Day’ in the practice manual is defined to mean a court day. It is common cause that the applicant failed to seek the second respondent’s consent to any extension of the 60-day period and that the applicant failed to direct any

application for an extension of time to the office of the Judge President. The applicant filed a supplementary affidavit on 19

September 2019. On 27 November 2019, the applicant file the security bond and on 16 January 2020, filed the application to seek the reinstatement of the review.

[8] The explanation for the delay is one that centers on administrative factors and bureaucratic protocols in the office of the state attorney. These factors are not identified in any detail, but appear to relate to the unavailability of the counsel previously in brief, and procedural requirements relating to the appointment of new counsel.

[9] Insofar as prejudice is concerned, the applicant submits that it has provided a security bond (filed on 27 November 2019) and that a supplementary and answering affidavit have been filed. In relation to prospects of success, the applicant submits that it enjoys excellent prospects of success in the main application. The grounds for review are based primarily on what are alleged to be gross irregularities in the form of errors committed by the arbitrator in the conduct of the arbitration. Primary amongst these is a contention that the arbitrator refused to allow a statement made by a Ms Sebothe in circumstances where application had been made in terms of section 3 of the Law of Evidence Amendment Act to admit her evidence.

[10] Given the relatively insignificant period of delay and the reasonableness of the explanation, it seems to me that the review application ought to be reinstated on the basis of the applicant’s prospects of success or a neutral factor. I fully appreciate that any further delay in finalising the review application is prejudicial to the applicant who has apparently been unemployed since the date of his dismissal. It is also in the applicant’s interests that the matter be brought to finality as soon as possible. For this reason, I intend to direct the registrar to ensure that the review application

be set down for hearing on a preferential basis. Finally, for the purposes of the broad discretion conferred on the court in terms of section 162 of the LRA, the costs of the application to reinstate the review ought to be borne by the parties, for their own account.

I make the following order:

1. The review application, deemed withdrawn in terms of clause 11.2 of the practice manual, is reinstated.

André van Niekerk

Judge of the Labour Court of South Africa

Representation

For the applicant: Adv Ntshangase, instructed by the state attorney

For the second respondent: Adv Legae instructed by Nkulu Inc Attorneys