TASWU obo Maluleka v Koekemoer NO and Others (JR 1624/2018) [2023] ZALCJHB 328 (28 November 2023)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNEBURG

Not Reportable

Case No: JR 1624/2018

In the matter between:

TASWU obo MALULEKA, MAGEZI Applicant And WILLEM KOEKEMOER N.O. (cited in his capacity as arbitrator of the South African Road Passenger Bargaining Council) First Respondent SOUTH AFRICAN ROAD PASSENGER BARGAINING COUNCIL Second Respondent JET A-1 LUXURY TOURS CC Third Respondent

Heard: 09 November 2023

Delivered: 28 November 2023

(This judgment was handed down electronically by circulation to the parties’ legal representatives, by email, publication on the Labour Court’s website and released to SAFLI. The date on which the judgment is delivered is deemed to be 28 November 2023.)

JUDGMENT

VAN NIEKERK, J

[1] The applicant seeks to reinstate a review application that has been deemed withdrawn on account of a failure to comply with the Practice Manual.

[2] The applicant employee was dismissed for contravening a workplace rule that prohibited him from deviating from his route to pick up learners. The employee did not dispute breaching the rule, and at the conclusion of the proceedings under review, the first respondent (the arbitrator) found that the employee’s dismissal was substantively and procedurally fair.

[3] On 13 August 2018, the applicant filed an application to review and set aside the award. A Rule 7A (8) notice was filed on 27 September 2018. The third respondent’s attorney received the record only on 15 November 2018. He noticed that the record was incomplete; there was no transcript in respect of the proceedings on 19 April and 14 June 2018. The complete transcript was not forthcoming, and on 11 December 2019, the third respondent’s attorney afforded the applicant until 7 January 2019 to file the complete record. Nothing was done. On 14 June 2019, the third respondent’s attorney again wrote to the applicant noting that it could be inferred that the applicant had withdrawn the review. Again, nothing transpired until 16 October 2019 when a new transcript totalling some 313 pages, was filed. On 8 November 2019, the present application was filed, seeking to revive the review application after its deemed withdrawal in terms of clause 11.2 of the Practice Manual.

[4] Clause 11 of the Practice Manual makes clear that the applicant in a review application must collect the record from the registrar within 7 days of a Rule 7A (5) notice. This requires the applicant to satisfy itself that the record is complete. In the present instance, the applicant filed the incomplete record that it had uplifted, oblivious to the fact that the record was incomplete.

Clause 11.2.2 requires the complete record to be filed within 60 days of the date on which the applicant is advised by the registrar that the record has been received. Clause 11 further establishes a mechanism for an extension of the 60-day period to be sought, in circumstances such as the present, where difficulty is encountered in filing a complete record.

[5] In the present instance, the applicant concedes that it became aware, at least by 26 November 2018, that the record was incomplete. It was only on 9 January 2019 that the bargaining council was approached regarding the record, which was supplied to the applicant on 14 January 2019. A quote for the transcription of the outstanding record was obtained from the transcribers on 15 January 2019. For some seven months, the applicant did nothing to ensure that the complete record was filed. The explanation proffered in these proceedings is that it had difficulty raising the amount of R 4 951.21, being the costs of transcribing two days’ evidence.

The union’s attempts to lay blame at the feet of its member are disingenuous – the union had represented the employee at the arbitration hearing and indeed, continues to represent him in these proceedings. The explanation for an excessive delay in filing the complete record is simply unacceptable.

[6] In so far as the applicant’s prospects of success are concerned, these must necessarily be assessed against the threshold that applies in a review application. That threshold is deliberately set high, and permits intervention by this court in only limited circumstances. None of the grounds for review raised by the applicant, on the face of it, call the reasonableness of the arbitrator’s award into question. It is clear from the award that the applicant was not regarded as a credible witness, and that the evidence given by the third respondent’s witnesses was preferred. There are no indications from the award or the record that the arbitrator committed any reviewable irregularity or that his decision was so unreasonable that no reasonable decision-maker could come to the decision he did. The applicant’s prospects of success in the review application are minimal, if they exist at all. Given an unacceptable explanation for an inordinate delay, and no prospects of success in the main application, the present application

stands to be dismissed.

[7] The third respondent sought the costs of the present application. The Constitutional Court has made clear that in this court, costs do not necessarily follow the result, and that an award of costs against an employee who approaches the court in good faith to pursue his or her interests is exceptional. This case does not fall into that category, and for the purposes of section 162, the

interests of the law and fairness are best satisfied by each party bearing its own costs.

I make the following order:

1. The application is dismissed.

André van Niekerk

Judge of the Labour Court of South Africa

Appearances:

For the applicant:

J Brits, Higgs Attorneys

For the respondent:

R Kuhn, Rudolf Kuhn Attorneys