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IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR750/18

In the matter between:

RUSTENBURG LOCAL MUNICIPALITY                                                     Applicant

and

SOUTH AFRICAN LOCAL GOVERNMENT

BARGAINING COUNCIL                                                                First Respondent

COMMISSIONER PIETER GREYLING N.O.                             Second Respondent

EMMANUEL HAPPY THOKE                                                        Third Respondent

 

Heard:   2 July 2021

Delivered:   25 August 2021 (In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation to the parties' representatives by email. The date for hand-down is deemed to be on 25 August 2021.)

JUDGMENT

SASS, AJ

Introduction

[1]   This is an application to review and set aside the rescission ruling of the Second Respondent issued on 7 February 2018 and received by the Applicant on or about 6 March 2018 (the Rescission Ruling).

[2]   The Third Respondent raised a jurisdictional issue (in his heads of argument), contending that this Court lacked the necessary jurisdiction to consider the review application as it had been served on him at least two days late and that in the absence of condonation being granted in respect of such late service, the review application ought to be dismissed.

[3]   At the hearing of the matter, the Third Respondent contended further that the Applicant not only required condonation in respect of the late service of the review application but also the late filing thereof at this Court (i.e. late delivery of the review application). In this regard, the Third Respondent contended that the review application was only delivered during mid-February 2019 when it was filed by fax at this Court and that the Applicant required condonation in respect of such late delivery (the review application being delivered approximately five and a half to six months late) and also in respect of its failure to comply with the five day time period as prescribed in rule 5(3) of the Rules for the Conduct of Proceedings in the Labour Court for the filing of the original review application.

[4]   The Third Respondent raised further preliminary issues in relation to the Applicant’s alleged non-compliance with: (i) certain aspects of this Court’s Practice Manual (contending that the review application has lapsed and has been archived due to such non-compliance); and (ii) rule 7A (4), (6) and (8).

[5]   As alluded to in my introductory remarks, the Third Respondent’s jurisdictional challenge falls to be decided first before this Court is clothed with the necessary jurisdiction to consider any other preliminary issues or the review application itself.

The relevant facts

[6]   The facts are recorded in the papers and there is no need to burden this judgment with a repetition of the full factual background. It is sufficient for present purposes to record the following, which was common cause (either by virtue of the papers filed or through submissions or concessions made by the parties during argument.

[7]   The Third Respondent was dismissed by the Applicant on or about 15 May 2017. The Third Respondent was reinstated with retrospective effect into the employ of the Applicant in terms of the default arbitration award (the award) of the Second Respondent issued on 20 October 2017.

[8]   The Applicant applied to rescind the default Arbitration Award. The rescission application was dismissed by the Second Respondent in terms of a Rescission Ruling dated 7 February 2018. The Applicant received the Rescission Ruling on or about 6 March 2018.

[9]   The Applicant sent the review application to the Third Respondent by email on or about 20 April 2018 and on the same day the Third Respondent’s attorneys confirmed receipt of the review application by email.[1] The review application (Notice of Motion and Founding Affidavit) reflected the following date stamp of this Court – 7 February 2019.

[10]   Pleadings and Notices did not provide any other means to verify the date on which the review application was filed at this Court (and delivered in accordance with rule 4). The parties’ legal representatives did not have instructions from their clients in this regard. When the matter was heard on 2 July 2021, no condonation application had been delivered by the Applicant.

Submissions by the parties

Third Respondent’s submissions

[11]   This Court lacked the necessary jurisdiction to hear the matter as the review application was not served on the Third Respondent within the applicable six week time period. As the review application had been brought primarily in terms of section 145(2) of the Labour Relations Act[2] (LRA) (as indicated in the Review Application Founding Affidavit of the Applicant) although the Applicant’s Heads of Argument made mention of section 158 (1)(g) of the LRA as well. Either way, the relevant time period for the delivery of the review application was six weeks calculated from approximately 6 March 2018.

[12]   The six week time period elapsed on 18 April 2018 and seeing that the review application was served on the Third Respondent on or about 20 April 2018, any possible service of the review application was at least two days late.

[13]   There were no indications whatsoever that the review application had been filed at this Court prior to 7 February 2019. In terms of rule 5 (3) the Applicant was required to file the original review application at this Court within five days of 18 April 2018. Consequently, the delivery of the review application and compliance with rule 5 (3) was between five and a half and six months late.

[14]   In response to a question, the Third Respondent’s counsel confirmed that the jurisdictional challenge had not been raised by the Third Respondent in his Review Application Answering Affidavit and had only done so in his Heads of Argument (paragraphs 3.1 to 3.7 thereof). The Third Respondent’s counsel submitted that it was not necessary for the Third Respondent to plead the jurisdictional challenge in his Answering Affidavit. He indicated that it had been raised in the Third Respondent’s Heads of Argument and that whether or not this Court had jurisdiction was a matter of fact and that the Court itself could mero motu raise any jurisdictional issues.

[15]   The Applicant has been legally represented at all material times. In its review application Founding Affidavit it relied on section 145(2) of the LRA which meant that the Applicant and its legal representative/s in particular were required to satisfy themselves that they had complied with the applicable six week time period, something that they had failed to do.

[16]   The Third Respondent submitted that I should dismiss the review application with costs, alternatively, strike it from the roll with costs.

Applicant’s submissions

[17]   The Applicant only received the Third Respondent’s Heads of Argument on 2 July 2021, once the proceedings had commenced already. The Applicant was not aware of the jurisdictional issue prior to that and consequently no condonation application had been delivered, to the extent that such a condonation application may be required.

[18]   The Applicant did not concede that the review application had been served and filed (i.e. delivered) outside of the relevant six week statutory time period, contending that 20 April 2018 fell within that six week statutory time period. The parties did not have a calendar for 2018 at hand and the Applicant’s representative did not request a short adjournment to verify whether or not 20 April 2018 fell within the relevant six week statutory time period. The Applicant submitted that the delivery of the review application was not late but if it was, it was not very late.

[19]   The Applicant questioned why the jurisdictional issue in relation to condonation had been raised at such a late stage and submitted that it should have been raised in the Third Respondent’s review application Answering Affidavit and not in the Third Respondent’s Heads of Argument. It was submitted that if the Applicant was aware of this jurisdictional challenge it would have applied for condonation. The raising of the jurisdictional challenge during the hearing of the matter was described by the Applicant as an ambush by the Third Respondent and it was contended that the Third Respondent was being opportunistic.

[20]   The Applicant submitted that its failure to apply for condonation, to the extent that condonation may be required, was not deliberate, and that if condonation was required, I should postpone the matter to allow the Applicant to apply for condonation (along with a timetable for the filing of any papers in relation to that condonation application).

Evaluation and analysis

[21]   It became apparent at the commencement of the proceedings that the Applicant had not received the Third Respondent’s Heads of Argument prior to 2 July 2021 and was not aware at the commencement of the proceedings that a jurisdictional challenge had been raised by the Third Respondent and that the Applicant may be required to apply for condonation in respect of the later delivery of the review application and non-compliance with the applicable time period in rule 5(3).

[22]   Enquiries made during the hearing revealed that the Third Respondent’s Heads of Argument had purportedly been sent by email to the Applicant’s legal representative/s on or about 12 March 2020 to the following email address (as confirmed by counsel for the Third Respondent) – magoshi@majanginc.co.za

[23]   The Applicant’s attorney (Mr Magoshi) informed the Court that the abovementioned email address of his had been hacked in 2017 or 2018 and that his new email address since then had been mohale@majanginc.co.za.

[24]   The various notices filed in the matter since 2019 also provided the following further email address for the Applicant’s attorneys – majang@majanginc.co.za.

[25]   Neither of the email addresses referred to in the preceding two paragraphs (the second appearing in Notices filed in this matter as early as 6 February 2019) were used by the Third Respondent’s legal representative/s to transmit the Third Respondent’s Heads of Argument on the Applicant.

[26]   The question of service by email was raised by the Third Respondent in relation to the ‘service’ of the Review Application by email (although a service affidavit was filed by the Applicant in relation to the sending of the review application by email to the attorneys for the Third Respondent (and them having confirmed receipt of that email). The Third Respondent sought to serve its Heads of Argument by email. When I questioned this, the Third Respondent’s counsel suggested that rule 4 relating to service only applied to pleadings and that Heads of Argument were not pleadings. That was not correct, as rule 4 refers to ‘documents’ and Heads of Argument would fall within the ambit of ‘documents’.

[27]   Having regard to a 2018 calendar, it does appear that the six week time period calculated from 6 March 2018 did lapse on 18 April 2018. Consequently, the Applicant has not complied with the six week time period in terms of section 145 of the LRA in relation to service of the review application. Similarly, the Applicant has also not complied with that time period or with rule 5(3) in relation to the filing and delivery of the original review application.

[28]   As enunciated further in Mpayipeli v Education Labour Relations Council and two others[3], where a review application is delivered outside of the relevant six week time period, condonation is required to clothe this Court with jurisdiction to consider that review application. In the absence of condonation, there is no review application that serves before the Court.

[29]   What remains to be considered is what the consequence is of that lack of jurisdiction at this time – whether the review application stands to be dismissed, alternatively, whether the Review Application should be struck off the roll (as contended by the Third Respondent) or whether the matter ought to be postponed in order to provide the Applicant with an opportunity to file a condonation application.

[30]   Advocate Goosen contended that it was not competent for this Court to make an order postponing a matter if its jurisdiction was being challenged and that jurisdictional challenge had not been resolved in the affirmative (i.e. that this Court has jurisdiction. In Mhlongo v South African Revenue Service[4], the applicant initially sought to have the matter referred to oral evidence. Failing that, the applicant sought the postponement of the matter be postponed due to his lack of preparedness as a result of the oral evidence application being dismissed.

[31]   The applicant brought a breach of contract claim in terms of section 77 of the BCEA to this Court alleging that his employer suspended him in contravention of its disciplinary code, which fell within the terms of his employment contract. In its defense, the respondent contended that the code did not form part of the terms and conditions of the employment contract. Moreover, the respondent argued that this Court did not have jurisdiction to hear the matter as the matter was a section 185 unfair dismissal claim to be referred in terms of section 191 of the LRA.

[32]   This Court then determined the application for postponement before determining the challenge to its jurisdiction. It held that the dismissal of the oral evidence application did not constitute a reasonable and justifiable basis to postpone the entire matter - “[The postponement] would serve no purpose and offend the spirit of the LRA to resolve disputes as expeditiously as possible”. Thereafter, this Court considered the jurisdictional challenge and held that it did not have jurisdiction to hear the matter. The applicant took the matter on appeal, and the LAC in Mhlongo v South African Revenue Service[5] held that this Court erred in its finding that it lacked jurisdiction.

[33]   This Court’s decision in respect of the postponement application was not set aside on appeal though. I therefore do not necessarily agree that this matter could not be postponed by this Court to allow the Applicant and opportunity to apply for condonation. I do not, however, find that such an order would be appropriate in the circumstances.

[34]   In the absence of a proper condonation application from the Applicant, and condonation being granted, the review application would ordinarily be dismissed on that basis alone. In SA Transport and Allied Workers Union and Another v Tokiso Dispute Settlement and Others[6], the Court held that:

‘….where the steps constitute a jurisdictional step, a time-limit, and the party is out of time then, in the absence of an application for condonation, a court cannot come to a party’s assistance…..’

[35]   The Applicant only became aware of the jurisdictional challenge raised by the Third Respondent on the morning when the matter was heard. The Applicant would more than likely have applied for condonation if it was aware of the jurisdictional challenge. The Third Respondent did not dispute that the Applicant was not aware of the jurisdictional challenge but contended that as it had relied on section 145 of the LRA, it should have been aware that it had not complied with the relevant time period [or rule 5 (3) for that matter] seeing that it was legally represented at all material times.

[36]   This Court in Solidarity obo JF Botha v CCMA and Others[7] had occasion to consider the difference between dismissing or striking a matter off the roll, albeit in the context of the applicant in a review application failing to file the complete record. It is useful to quote at length the principles as set out by Molahlehi J. In this regard, the learned judge held as follows:

“[16] I pause to briefly deal with the difference between dismissing or striking a matter from the roll. The distinction between striking the matter off the roll and dismissal is that in the case of dismissal the matter is disposed of and can no longer be set down, on the roll again. This means if the applicant wishes to proceed with the matter in that instance, he or she would have to start the matter de novo. On the other hand, when the matter is struck off the roll, the applicant can after remedying the defect arising from the incomplete or inadequate record have the matter re-enrolled and set down for a hearing. The different consequences that arise from dismissal, striking the matter off the roll, absolution from the instances were considered in Goldman v Stern 1931 AD 261.

[17] In Peter Fountas v Brolaz Projects (Pty) Ltd and Others case number JA 35/03. Nkabinde AJA, considered the options which the court could adopt when considering whether to dismiss or struck the matter off the roll because of a defective or inadequate record. The dismissal option should be adopted where the applicant fails to explain why despite the ample opportunity he or she had, failed to take the appropriate steps to address the issue of the defective or inadequate record. The Peter Founters’, decision cautioned that the court should be slow in resorting to the dismissal option for this has serious implication to a litigant who is seeking to challenge what he or she believes to be an unfair and unreasonable award. In my view, in appropriate circumstances where the dictates of speedy resolution of the dispute, justice and fairness so dictates, the court should not hesitate to dismiss the matter due to inadequacy of the record.

[18] This approach of not readily dismissing a review application even though there seem to have been no satisfactory explanation was adopted by Mashazi AJ, in the unreported case of Solidarity obo Canavan v Commission for Conciliation, Mediation and Arbitration and Others (case number JR2999/06)

[19]  In as far as the dismissal option is concerned the court in Peter Founters’s case in the last part of paragraph [33], said: “This occurs where, for example, the matter had dragged on for a long time and the relevant party had had ample opportunity to reconstruct the record but had, for no acceptable reason, failed to so.”

[20] The other option indicated in Peter Founters, is that of postponing or striking the matter off the roll to afford the applicant the opportunity to reconstruct the record or to find the missing parts of the record. This should in general be done where the applicant has given a satisfactory explanation as to what attempts he or she had taken to reconstruct or find whatever part of the record may be missing.

[21] The ultimate determination as to whether or not to dismiss or struck a matter from the roll should be based on fairness and justice after the assessment of the conduct of the applicant and the circumstances of the case. The order of dismissal would in my view be inappropriate where there is evidence of the attempts on the part of the applicant, enquiring from the CCMA regarding the missing portion of the record and seeking to have that part reconstructed. It would also be unfair to dismiss where the record cannot be found, and it is also impossible to reconstruct.

[22] It seems to me from the reading of the authorities that where there is no record or the record is inadequate, the applicant has in addition to explaining in the papers why the record is not complete or is in adequate, has to indicate in full the steps he or she took to ensure that the record was before the Court including attempts at reconstructing it.”

[37]   I am of the view that it is not in the interests of fairness and justice to dismiss the review application, having regard to and assessing the conduct of the Applicant and the circumstances of the case.

[38]   Instead, the review application stands to be struck from the roll in light of the Applicant having a satisfactory explanation for its failure to apply for condonation – it not having been aware until the hearing of the matter that it had not complied with the relevant time period. It cannot be said that the Applicant had ample opportunity to apply for condonation but had, for no acceptable reason, failed to so. It would not be in the interests of justice and fairness for the Applicant to start the matter de novo if it wished to proceed with the review application. That may well not be in any of the parties’ interests.

[39]   Ultimately, whether the explanation for the delay in serving and filing the review application as well as the delay in applying for condonation is reasonable and acceptable, will be something for this Court to decide if and when the Applicant applies for condonation.

[40]   As no condonation application was before the Court on 2 July 2021, I have not considered any submissions made in respect of the degree of lateness or the reasons for the delay by the Applicant. In Booysen Bore Drilling (Pty) Ltd v National Union of Mineworkers and Others[8] the Court said:

‘Insofar as the application for condonation is concerned, this could only be entertained by the Labour Court on notice to the appellant. The notice was necessary in light of the wording of the application for condonation and the failure by the respondents to comply with rule 7(e) of the rules that regulate proceedings in the Labour Court or to call upon the appellants to file their oppositions, if any, to the application within a given time.’

[41]   It would not be proper for this Court to consider, let alone decide, the issue of condonation, in the absence of such an application on notice to the Third Respondent.

Conclusion

[42]   In all the circumstances, I am satisfied that this Court lacks the necessary jurisdiction at this time to consider the review application and therefore the review application falls to be struck from the roll.

Costs

[43]   This then leaves only the issue of costs.

[44]   In terms of the provisions of section 162(1) of the LRA, which regulates orders for costs in this Court, I have a wide discretion when it comes to the issue of costs, having regard to the requirements of the law and fairness after taking into account all of the relevant facts and circumstances.

[45]   In exercising this judicial discretion, the Constitutional Court in Long v South African Breweries (Pty) Ltd and Others[9] re-affirmed the principle set in Zungu v Premier of the Province of Kwa-Zulu Natal and Others[10] with regard to costs in employment disputes and stated that ‘when making an adverse costs order in a labour matter, a presiding officer is required to consider the principle of fairness and have due regard to the conduct of the parties.’

[46]   In exercising my discretion, I do not believe that the current state of affairs was caused by the Applicant itself. As a starting point, it was caused by the failure of the attorneys of the Applicant to be aware that the Review Application had not been served within the relevant statutory time period or filed within the relevant statutory time period. As indicated by Mr Goosen, it was not for the Third Respondent to point out to the Applicant that the relevant statutory time periods (in section 145 and rule 5 (3)) had not been complied with. When confronted with the information, Mr Magoshi did not seek an adjournment to verify whether or not the six week statutory time period had been complied with – an exercise that may have taken a minute or two. He persisted on the one hand throughout his argument that the six week statutory time period has been complied with. The circumstances do not, however, justify an order for costs, on a punitive scale, de bonis propriis.

[47]   In Saloojee and Another NNO v Minister of Community Development[11], Steyn CJ stated the following in relation to a lack of diligence on the part of an attorney and how a litigant that chooses that attorneys as its representative should not be absolved from the normal consequences of such a relationship, no matter what the consequences of the failure by the attorney are:

‘I should point out, however, that it has not at any time been held that condonation will not in any circumstances be withheld if the blame lies with his attorney. There is a limit beyond which a litigant cannot escape the results of his attorney’s lack of diligence, or the insufficiency of the explanation tendered. To hold otherwise might have a disastrous effect on the observance of the Rules of this Court. Considerations ad misericordiam should not be allowed to become an invitation to laxity. In fact, this Court has lately been burdened with an undue increasing number of applications for condonation in which the failure to comply with the Rules of this Court was due to neglect on the part of the attorney. The attorney, after all, is the representative whom the litigant has chosen for himself, and there is little reason why, in regard to condonation of a failure to comply with a Rule of Court, the litigant should be absolved from the normal consequences of such an relationship, no matter what the consequences of the failure are.”

[48]   In Fibro Furnishers (Pty) Ltd v Registrar of Deeds, Bloemfontein and Others[12], Hoexter JA also made reference to the “oft-repeated judicial warning that there is a limit beyond which a litigant cannot escape the results of his attorney’s lack of diligence or the insufficiency of the explanation tendered.”

[49]   In UTI South Africa v Pilusa and Others[13] the applicant, through its former attorneys of record, failed to lodge the review application timeously and later sought condonation for the delay. The applicant blamed the negligence of its previous attorneys for the delay. However, this Court, relying on Saloojee and Another v Minister of Community Development, stated that an applicant cannot solely rely on the tardiness or negligence of its legal representative in a condonation application to justify the delay, and condonation was refused on the basis that good cause was not shown to justify the granting of condonation.

[50]   Furthermore, the applicant failed to file the record of the arbitration timeously and had not applied for condonation for the late filing. The applicant ascribed this delay to its former attorneys of record’s negligence and/or incompetence and explained that it had terminated their services and appointed new attorneys of record. The respondents filed a rule 11 application to dismiss the review application on the basis that it failed to file the record timeously, which consequently rendered the applicant’s review application fatally defective. Moreover, in the absence of a condonation application, the respondents argued that this Court did not have jurisdiction to hear the matter. This Court granted the respondents’ rule 11 application due to the applicant’s late filing of the record, its failure to apply for condonation for the late filing, and the lack of a reasonable explanation for the late filing of the review application. This Court saw no reason why costs should not follow the result and ordered the applicant to pay the costs of the respondents. The applicant was held accountable for the lack of diligence on the part of its former attorneys of record.

[51]   The Honourable Justice Nicholson AJA stated the following in Superb Meat Supplies CC [14]:

“In this court and the Supreme Court of Appeal there have been frequently repeated judicial warnings that there is a limit beyond which a litigant cannot escape the results of his attorney’s lack of diligence of the insufficiency of the explanation tendered. It has never been the law that invariably a litigant will be excused if the blame lies with the attorney. to hold otherwise might have a disastrous effect upon the observance of the rules of this court and set a dangerous precedent. It would invite and encourage laxity on the part of practitioners.”

[52]   This principle was enunciated in the PPWAWU and Others case[15], where the court held that:

“employees are not entitled to rely on the tardiness of their representative. Although the delay was caused by the negligence of the representative, there are limits to which applicants can rely on such negligence even when they are personally innocent of any tardiness.”

[53]   Whilst these two cases related to there being limits beyond which a party cannot rely on its legal representative’s lack of diligence or negligence when they are themselves innocent insofar as an explanation is provided for any delay or non-compliance with time periods, there is no reason why the same is not applicable with regard to costs.

[54]   There is therefore a limit beyond which the Applicant cannot escape the results of the lack of diligence of its attorneys in serving and filing the review application timeously. The Applicant has chosen its representatives and there is little reason why in relation to the Third Respondent’s wasted costs, the Applicant should be absolved from the normal consequences of such a relationship.

[55]   The effect of either postponing the matter as Mr Magoshi requested or striking the matter from the roll has the effect of granting the Applicant an indulgence and an opportunity to file a condonation application. No tender of the Third Respondent’s wasted costs, occasioned by that indulgence, was tendered by the Applicant. A gesture of that kind may well have been appropriate in the circumstances.

[56]   The fact that the matter is struck from the roll allowing the Applicant to apply for condonation does not imply that it should be absolved from the consequences of its conduct or that of its attorneys in failing to adhere to the applicable time frames. In this regard, the requirements of law and fairness dictate that the Applicant ought to be burdened to some extent with the Respondent’s wasted costs occasioned by this matter being struck off the roll.

[57]   Taking account of all the relevant facts and circumstances and having regard for the requirements of the law and fairness, I consider it appropriate that the Applicant pay at least a portion of the Third Respondent’s wasted costs in relation to the appearance on 2 July 2021. In my view, a sum equivalent to 50% of the Third Respondent’s costs in that regard (only in relation to the appearance on 2 July 2021), including the costs of employing one counsel, will best serve those interests.

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

Order

1.      The matter is struck from the roll.

2.      The Applicant is to pay 50% of the Third Respondent’s wasted costs for the day (the appearance on 2 July 2021) occasioned by the matter being struck from the roll, including the cost of employing one counsel, as either taxed or agreed.

M Sass

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant:                          Mr. Mohale Magoshi of Majang Inc. Attorneys

For the Third Respondent:            Adv. C Goosen

Instructed by:                                Van Zyl Attorneys

 

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