---

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR2321/15

In the matter between:

THAANYANE PETER KOMETSI	Applicant
and
COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION	First Respondent
COMMISSIONER F. VAN DER MERWE	Second Respondent
SOUTH DEEP GOLD MINE (A DIVISION OF GOLD FIELDS LTD)	Third Respondent

Heard:           17 MAY 2016

Delivered:     17 August 2016

JUDGMENT

TLHOTLHALEMAJE, J

[1] The Third Respondent approached the Court in terms of Rule 11 (1) (a) of the Rules of this Court to seek an order that the Applicant’s review application instituted under the present case number be deemed to have been withdrawn by reason of the Applicant’s failure to prosecute the matter timeously.

[2] The Third Respondent’s application is premised on Rules 7A (5) and 7A (6) of the Rules of this Court[1], and clauses 11.2.2 and 11.2.3 of the Labour Court Practice Manual[2]. The provisions of the Manual require that records of arbitration proceedings must be filed within 60 days of the date on which the applicant is advised by the registrar of this court that the record has been received. They also make provision for the respondent party to grant the applicant an extension of time, or for condonation applications in the event of non-compliance. Thus if in this case it is found that the Applicant failed to make such applications, the matter ought to be archived. 

The background to this application is as follows;

[3] On 24 November 2015, the Applicant as assisted by Labour Assistance @ Workplace, launched an application in terms of section 145 of the Labour Relations Act[3] (LRA to review and set aside the arbitration award issued on 21 September 2015 under case number GAJB13930-15. In that award, the Applicant’s claim of an alleged unfair dismissal within the meaning of section 186 (1) (b) of the LRA was dismissed by the Second Respondent (Commissioner).

[4] The Third Respondent’s case is that the Applicant served the review application on it on 11 February 2016, some two and a half months after the application was filed at this Court. On 9 December 2015, the Registrar of the Court had sent a notice to the Applicant informing him to collect the record of proceedings, but the Applicant only uplifted the record on 11 February 2016, long after the seven days’ period contemplated under Rule 7A (5) of the Rules of this Court.

[5] The Applicant’s 60 day dies to deliver the record of the proceedings expired on 8 March 2016, and he only delivered the transcript to the Third Respondent on 17 March 2016 via email, unaccompanied by a bundle of documents used at the arbitration proceedings. Other problems associated with the transcript as identified by the Third Respondent were that it failed to disclose who had prepared it, when was it prepared, and did not contain a certificate of veracity.

[6] The Third Respondent contends that since the delivery of the transcript via registered mail, the Applicant has not taken any further steps to prosecute the review application, has not delivered a notice and accompanying affidavit amending, adding or varying his notice of motion and supplementing his supporting affidavit, or a notice indicating that he stood by his notice of motion in terms of Rule 7A (8) (a) or (b).

[7] The Rule 11 application was filed on 18 March 2016. The Applicant’s 10 day dies to deliver a notice of opposition and answering affidavit expired on 7 April 2016. On 6 May 2016, the Applicant appointed Goldberg Attorneys as his attorneys of record, and the answering affidavit to the Rule 11 application was delivered on 16 May 2016, some one month after the expiry of the 10 day dies.

[8] In regards to the above, the Third Respondent pointed out that the Applicant has not sought condonation in respect of the late service of the review application on it; the late upliftment of the record of the proceedings, the late delivery of the transcribed record to it, and in respect of the late delivery of the answering affidavit to the Rule 11 application.

[9] This matter was initially placed on the unopposed motion roll in terms of a notice of set down issued on 12 April 2016. In terms of Rule (4) (b) of the Rules of this Court, a notice of opposition and an answering affidavit must be delivered within 10 days from the day on which the application is served on the party opposing the application. It was submitted on behalf of the Third Respondent that if the answering papers are not properly before the Court, then the review application ought to be deemed to have been withdrawn as per the relief sought in its founding affidavit.

[10] The Rule 11 application having been filed on 18 March 2016, and the Applicant’s 10 day dies to deliver a notice of opposition and answering affidavit having expired on 7 April 2016, some one month after the expiry of the 10 day dies, the Applicant, to the extent that he had wished to oppose that application, ought to also have filed an application for condonation for the late delivery of the answering affidavit.

[11] The Applicant had as correctly pointed out on behalf of the Third Respondent, not filed such an application, and it is my view that this matter should be determined on that basis alone. Mr. Goldberg submitted during arguments that to the extent that the matter has since become opposed, it should now be treated as such. A matter cannot be deemed to be opposed merely on the basis that answering papers have been filed in that regard. Those answering papers must be properly before the Court as envisaged within the provisions of Rule 7 (4) (b) of the Rules of this Court, and if not, and to the extent that a condonation in that regard has neither been filed nor determined, the application remains unopposed.

[12] The contention that the issue of condonation in respect of the late filing of the answering affidavit ought to be disregarded on the basis that it was only raised in the Third Respondent’s Practice Note, which was served belatedly has no merit. Even if it was not raised, the Court was obliged to raise it to satisfy itself that the answering papers are properly before it. To this end, there is no basis for this Court to consider the Applicant’s answering affidavit to the Rule 11(1) (a) application.

[13] Having had regard to the averments made in the Third Respondent’s founding affidavit, I am satisfied that there is cause to deem the review application as having been withdrawn for reasons set out therein. These include the fact that the Applicant failed to comply with the 60 day dies to deliver the record of proceedings. To the extent that any such record may have been filed, albeit belatedly, that record is defective as pointed out by the Third Respondent in its Notice of Objection[4]. Other problems associated with the Applicant’s review application include the fact that no further steps have been taken to prosecute that application, and the failure to comply with the provisions of Rule 7 (8) (a) or (b) of the Rules of this Court. In the light of these and other considerations, it is deemed appropriate to make the following order;

Order:   

i.        The review application instituted by the Applicant  under the present case number is deemed to have been withdrawn in terms of the provisions of clause 11.2.3 of the Practice Manual of this Court.

ii.        There is no order as to costs.

__________________

Tlhotlhalemaje, J

Judge of the Labour Court of South Africa

APPEARANCES:

On behalf of the Applicant:               Mr. A Goldberg of Goldberg Attorneys

On behalf of the Respondent:          Mr. M Yeates of Cliffe Dekker Hofmeyr

---

---