---

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case no: JR874/13

ANGELO SHAIK	Applicant
and
COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION	First Respondent
KEKANA, P N.O.	Second Respondent
METIX (PTY) LIMITED	Third Respondent

Heard:           17 December 2015

Delivered:     8 July 2016

Summary:     Applicant failing to file a complete record of arbitration proceedings within 60 days of the notice by the Registrar that the record has been filed. Applicant failing to apply to Judge President in terms of clause 11.2.3 of Practice Manual for an extension of time in which to file the record after consent for extension refused by Third Respondent.

JUDGMENT

JACKSON, AJ

Introduction

[1] This is an interlocutory application in terms of which the Third Respondent seeks a dismissal of the Applicant’s review application in terms of Rule 11 due to Applicant’s failure to prosecute its application timeously.

[2] The main application in this matter is the review application in terms of which the Applicant seeks to review an arbitration award which was made in favour of the Third Respondent.

[3] The Applicant has also applied for condonation for the late filing of his answering affidavit in the Rule 11 application.

[4] The Third Respondent has taken the point that the review application be deemed to have been withdrawn because the Applicant failed to comply with clauses 11.2.2 and 11.2.3 of the Practice Manual of the Labour Court which provides as follows: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             If the Applicant fails to file a record within the prescribed period, the Applicant will be deemed to have withdrawn the application, unless the Applicant has during that period requested the Respondent’s consent for an extension of time and consent has been given.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. This application must be accompanied by proof of service on all of the 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.’

[5] The Third Respondent’s complaint is that Applicant failed to file the full record within the requisite 60 day period and furthermore failed to apply to the Judge President in chambers for an extension of time in which to file same once the Third Respondent refused consent for such an extension. Third Respondent, accordingly, contends that the Applicant is deemed to have withdrawn the application.

Applicant’s condonation application

[6] The principles of condonation were established in Melane v Santam Insurance Company Limited[1] where the Court held that:

‘In deciding whether sufficient cause has been shown, the basic principle is that the Court has a discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefor, the prospects of success and the importance of the case. Ordinarily these facts are inter-related; they are not individually decisive, save of course that if there are no prospects of success there would be no point in granting condonation. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the facts. Thus a slight delay and a good explanation may help to compensate prospects which are not strong. Or the importance of the issue and strong prospects of success may tend to compensate for a long delay. And the Respondent’s interests in finality must not be overlooked.’

[7] The delay in filing his answering affidavit was only seven days, which I agree with the Applicant, is not substantial.

[8] The Applicant attributed such delay to the passing away of his father-in-law in Bloemfontein and the need to appoint and consult with new attorneys after the relationship with his erstwhile attorneys had come to an end.

[9] I accept the reasons for the delay as being reasonable.

[10] I, however, have difficulty with the Applicant’s prospects of success in the Rule 11 application. My reasons are as follows.

[11] At issue in the Rule 11 application is the status and enforceability of the provisions of the Practice Manual.

[12] In the matter of Tadyn Trading CC t/a Tadyn Consulting Services v Steiner and Others,[2] the Court aligned itself with the approach that the High Court adopted in In re Several Matters on the Urgent Roll,[3] in which the Court held that in law the Judge President was entitled to issue practice directives relating to the procedure of setting down matters on the roll. 

[13] In the matter of Ralo v Transnet Port Terminals and Others,[4] the Court per Van Niekerk, J agreed with the above decision and stated as follows:

‘9.        I agree. The Practice Manual contains a series of directives, which the Judge President is entitled to issue. In essence, the manual sets out what is expected of practitioners so as to meet the imperatives of respect for the Court as an institution, and the expeditious resolution of labour disputes. While the manual acknowledges the need for flexibility in its application, its provisions are not cast in the form of a guideline, to be adhered to or ignored by parties at their convenience.’

[14] I agree with the above sentiments especially insofar as the imperative of respect for the Court as an institution is concerned.

[15] Clause 11.2.3 of the Practice Manual makes it abundantly clear that if the Applicant fails to file the record within the prescribed period of 60 days, 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 granted.

[16] On 8 September 2014, the Third Respondent’s attorneys wrote a letter to the Applicant’s attorneys advising them, inter alia, that the 60 day period had expired and that during that period no request for an extension in which to file the record had been received.

[17] On 11 September 2014, Applicant’s attorneys wrote to Third Respondent’s attorneys requesting consent to the extension.

[18] On the same date, the Third Respondent’s attorneys wrote back to Applicant’s attorneys refusing such consent.

[19] From that date onwards, it should have been clear to the Applicant that in terms of the provisions of clause 11.2.3 of the Practice Manual, the next course of action was to apply, on notice of motion supported by affidavit, to the Judge President in chambers for an extension of time together with the requisite condonation application.

[20] The Applicant failed to make such application and, accordingly, he was deemed to have withdrawn his application.

[21] In his attorney’s various items of correspondence, Applicant complains repeatedly that a portion of the recording of the arbitration proceedings was missing and requests a meeting with the Third Respondent’s attorneys (together with the Second Respondent) in an attempt to reconstruct the record.

[22] In terms of clause 11.2.4 of the Practice Manual, this was the incorrect approach to take.

[23] Applicant should rather have approached the Judge President for a direction on the further conduct of the review application. Only thereafter may a Judge appointed by the Judge President direct, if necessary, that certain portions of the record be reconstructed.

[24] In my view, Applicant has failed to adhere to the various prescripts of the Practice Manual as set out above.

[25] I am of the view that Applicant has no prospects of success in opposing the Rule 11 application and that his condonation application should be dismissed.

[26] Furthermore, for the reasons set out above, the Applicant is deemed to have withdrawn the application.

[27] I do not, however, believe that costs should follow the result in this matter.

Order

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

(i)         The Applicant’s condonation application is dismissed;

(ii)         The Applicant’s review application is dismissed;

(iii)        There is no order as to costs.

__________________

Jackson, AJ

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant:                Advocate C Humphries

Instructed by:                      N. Kathree Attorneys

For the Respondent:           Attorney R Makoele

Instructed by:                      De Beer Makoele Inc

---