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THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

 

 

Reportable

Case no: JR 1648/10

J 492/20

 

 

In the matter between:

 

SOUTH AFRICAN SOCIAL SECURITY AGENCY          Applicant

 

and

 

SURAYA HARTLEY                                                         First Respondent

 

MARGARET SMITH, N.O                                                Second Respondent

 

COMMISSION FOR CONCILIATION

MEDIATION AND ARBITRATION                                    Third Respondent

 

 

Heard:          7 February 2023

Delivered:    01 March 2023

This judgment was handed down electronically by consent of the parties’ representatives by circulation to them by email. The date for hand-down is deemed to be 01 March 2023.

 

 

JUDGMENT

 

 

PRINSLOO, J

 

Introduction

 

[1]             One of the primary objects of the Labour Relations Act[1] (LRA) is the effective resolution of labour disputes.

 

[2]             The Constitutional Court, in the opening paragraph of Toyota SA Motors (Pty) Ltd v CCMA and others[2] held that:

 

‘Time periods in the context of labour disputes are generally essential to bring about timely resolution of the disputes. The dispute resolution dispensation of the old Labour Relations Act was uncertain, costly, inefficient and ineffective. The new Labour Relations Act (LRA) introduced a new approach to the adjudication of labour disputes. This alternative process was intended to bring about the expeditious resolution of labour disputes which, by their nature, require speedy resolution. Any delay in the resolution of labour disputes undermines the primary object of the LRA. It is detrimental not only to the workers who may be without a source of income pending the resolution of the dispute but, ultimately, also to an employer who may have to reinstate workers after many years.’

 

[3]             The scheme of the LRA is that, if it creates a right, it also creates processes or procedures for the enforcement of that right, a dispute resolution procedure for disputes about the infringement of that right, specifies the fora in which that right must be enforced and specifies the remedies available for a breach of that right.[3] The Rules of the CCMA[4] or bargaining councils, the Rules of this Court[5] and the Practice Manual[6] navigate litigation that may arise within the realm of labour relations and disputes.

 

[4]             In a review application there rests an undeniable and intertwined responsibility or duty on all the parties, be it the applicant or the respondents, and this matter shows the devastating consequences if those responsibilities or duties are forsaken.

 

[5]             There are two applications before me – a review application, seeking the review and setting aside of an arbitration award dated 19 May 2010 as well as an application in terms of section 158(1)(c) of the LRA, seeking an order for the same arbitration award to be made an order of Court. I will deal with the two applications in turn, but will refer to the parties consistently as the Applicant and the Respondent.

 

Background facts

 

[6]             The First Respondent (Respondent) was employed by the Applicant as a systems administrator. She was charged with misconduct, relating to fraud, which was allegedly committed in November 2004. After a disciplinary hearing was held, the Respondent was found guilty and she was dismissed in December 2006. She filed an internal appeal, which was finally dismissed in August 2008.

 

[7]             The Respondent subsequently referred an unfair dismissal dispute to the Third Respondent (CCMA) and the dispute was arbitrated on several dates in February and April 2010.

 

[8]             On 19 May 2010, the Second Respondent (arbitrator) issued an arbitration award reinstating the Respondent. A complete copy of the award was only served on the Applicant on 22 June 2010 and on 30 July 2010 a review application under case number JR 1648/10 was filed, seeking the review and setting aside of the said arbitration award and for the matter to be remitted to the CCMA for a hearing de novo.

 

[9]             The notice of motion required the arbitrator and the CCMA to dispatch, within 10 days of receipt of the notice and application, to the Registrar of the Labour Court, the record of the arbitration proceedings together with such reasons as are required by law or desirable to provide, and to notify the Applicant that this has been done.

 

[10]         On 26 August 2010, the Respondent filed a notice of intention to oppose the review application.

 

[11]         On 9 September 2010, the arbitrator and CCMA filed a notice to abide by the decision of this Court and on 14 September a notice in compliance with Rule 7A(3) was filed. The said notice indicated that the record of proceedings, comprising of one compact disc, as well as documents were filed.

 

[12]         The state attorney acting on behalf of the Applicant, Mr Erasmus, uplifted the record on 27 September 2010 and after following the required administrative procedures, he forwarded the record of the proceedings to I-Africa for transcribing on 7 October 2010.

 

[13]         On 17 November 2010, I-Africa informed Mr Erasmus that the record was ready for collection. After receipt of the record, it became clear that the transcript was deficient in that most of its parts were inaudible to the transcribers and there was no transcript for the entire proceedings of 29 April 2010.

 

[14]         On 25 November 2010, Mr Erasmus notified the CCMA that the record was incomplete and he requested that the outstanding audio be dispatched as a matter of urgency. On 31 January 2011, Mr Erasmus sent another email to the CCMA, requesting the CCMA to indicate whether the outstanding audio was filed. No response was received from the CCMA.

 

[15]         On 28 March 2011, Mr Erasmus served the transcribed record (as it was) on all the Respondents and he indicated that the proceedings of 29 April 2010 was incomplete. He explained in detail in what respect and to what extent the record was incomplete and requested the CCMA to convene a meeting for the parties to reconstruct the missing parts of the record. No response was received from the CCMA.

 

[16]         On 18 May 2011, Mr Erasmus addressed another letter to the CCMA, referring to his letter of 28 March 2011 wherein he stated that the delay was unacceptable and he requested urgent attention from the CCMA.

 

[17]         On 1 June 2011, Mr Erasmus informed the Respondent’s attorneys of record that he was still awaiting a response from the CCMA and the arbitrator to provide the parties with dates to reconstruct the record.

 

[18]         On 7 November 2011 Mr Erasmus once again wrote to the CCMA and the arbitrator, complaining about the fact that there was no response to any of his previous letters. He placed on record that the delay was unacceptable and that the Applicant would proceed with an application in terms of Rule 7A(4).

 

[19]         An application to compel in terms of Rule 7A(4) was indeed filed on 14 December 2011. The Applicant sought an order to compel the CCMA and the arbitrator to attend a reconstruction meeting.

 

[20]         On 16 January 2012, the CCMA filed another Rule 7A(3) notice. Nine pages of the arbitrator’s hand written notes were filed. The handwritten notes so filed related only to the proceedings of 29 April 2010 and were clearly filed in response to the Rule 7A(4) application.

 

[21]         Mr Erasmus received a letter from the CCMA on 18 January 2012, advising him of the fact that the arbitrator’s hand written notes were filed and that the arbitrator was available for the reconstruction of the record on 21, 27 and 29 February 2012. The parties were requested to confirm their availability on the proposed dates. The parties confirmed their availability for 29 February 2012.

 

[22]         The Rule 7A(4) application was not pursued as the arbitrator subsequently made herself available for the reconstruction process and provided possible dates to the parties.

 

[23]         On 17 February 2012, the CCMA informed Mr Erasmus that the arbitrator was no longer available for reconstruction on 29 February 2012 and indicated that she would be available on 27, 28 and 30 March 2012. The parties were once again requested to confirm their availability. Mr Erasmus responded that all the parties would be available on 28 March 2012. However, on the eve of the set date, the CCMA once again indicated that the arbitrator was no longer available on the said date for the reconstruction of the record.

 

[24]         On 10 April 2012, the Respondent’s attorneys informed the Applicant that they intended to file a Rule 11 application to have the review application dismissed because of the delayed prosecution thereof. Mr Erasmus responded on 18 April 2012, stating that the Applicant had done everything necessary to secure the availability of the arbitrator, with the view to reconstruct the record, but that on more than one occasion, the date set for reconstruction had been cancelled at the eleventh hour at the instance of the CCMA or the arbitrator. He made it clear that the delay was not caused by the Applicant, who was anxious for the matter to be finalised, as it is not the Applicant’s fault that the proceedings were not properly recorded. Mr Erasmus indicated that an application to dismiss the review application would be opposed and he stated that the Respondent should rather assist to find a way to expedite the process.

 

[25]         On 17 April 2012 Mr Erasmus once again requested the CCMA to urgently provide the parties with dates that the arbitrator could attend to the reconstruction of the record. The CCMA sent a notice of set down for the reconstruction of the record on 26 April 2012 and it was set down for 20 June 2012.

 

[26]         On 20 June 2012, the reconstruction meeting was held. It was attended by the Applicant’s representatives, the Respondent’s representative, who indicated that the Respondent did not provide any notes and the arbitrator, who indicated that her notes in the CCMA file were incomplete. She requested the parties to check the Court file for her original and complete notes. The arbitrator indicated that she would check her laptop for the outstanding recordings and she requested the Respondent’s representative to inform her whether the complete notes could be find in the Court file.

 

[27]         Mr Erasmus went to inspect the Court file on 28 June 2012, but he could not find any further notes of the arbitrator in the Court file. The arbitrator was subsequently informed that there were no further notes in the Court file. The arbitrator failed to revert to any of the parties as to whether she was able to find the outstanding recordings on her laptop. Mr Erasmus stated that in July 2012 the Applicant’s legal representatives proposed to the Respondent’s legal representatives that the matter be settled by way of an agreement to review the arbitration award and for the matter to be remitted for a hearing de novo.

 

[28]         The Rule 11 dismissal application was enrolled for hearing in July 2013, on which occasion the proposal that the matter be settled by way of an agreement to review the arbitration award and for the matter to be remitted for a hearing de novo was repeated. The Rule 11 application was postponed sine die as the Respondent’s representatives requested an opportunity to consider the proposal. Mr Erasmus did not subsequently receive any response from the Respondent’s attorneys and the Rule 11 application was once again set down for hearing on 13 July 2017. The Rule 11 application was dismissed on 2 March 2018 and the Court (per July AJ) issued an order wherein the Registrar was directed to set down the review application on the unopposed roll on notice to both parties.

 

[29]         It is evident from the affidavit deposed to by Mr Erasmus that after the arguments were concluded on 13 July 2017, the presiding Judge asked the parties to consider a practical way to deal with the matter, since the record was still not available and as such, the review application may have become a futile exercise. The Applicant made an offer on record to pay the Respondent compensation equivalent to 12 months’ of her salary, but such an offer was rejected.

 

[30]         In compliance with the Court order of 2 March 2018, the review application was set down for hearing on the unopposed roll of 7 August 2018. When the matter was called in Court, the Respondent’s current attorney of record, Mr Thompson, indicated that they intended to oppose the matter and the matter was removed from the roll to be enrolled on the opposed motion Court roll.

 

[31]         The Respondent filed her answering affidavit on 13 August 2018 and a replying affidavit was filed on 31 August 2018.

 

[32]         The Respondent filed a section 158(1)(c) application on 1 June 2020, which was set down for hearing on 9 February 2021, but was removed from the roll, as it became opposed.

 

[33]         The review matter was enrolled for hearing once again on 18 May 2021, on which occasion it was postponed due to the fact that the Respondent’s attorney was hospitalised and the fact that the pleadings in the Respondent’s section 158(1)(c) application had not yet closed.

 

[34]         The matter was once again enrolled on 2 November 2022, on which occasion it was removed from the roll and the Registrar was directed to enrol the review application (JR 1648/10) and the section 158(1)(c) (J492/20) to be heard simultaneously and to do so on an expedited basis. Both applications were enrolled for hearing on 7 February 2023.

 

Review applications in general

 

[35]         In order to achieve expeditious finalisation of labour litigation the starting point is that litigants must strictly comply with the time frames prescribed in the LRA, the Rules of this Court and the Practice Manual. The litigants and other functionaries have joint responsibility to ensure timeous compliance with time frames and the expeditious resolution or finalisation of labour disputes. As dominus litis, an applicant has a primary responsibility, whereas the respondent has a secondary, but equally important, responsibility to ensure timeous compliance with time frames[7]. The joint responsibility enjoins the parties to police each other in ensuring timeous compliance.

 

An applicant

 

[36]         An applicant in a review application pursued in terms of section 145 of the LRA has to launch the application within six weeks of the date that the award was served on the applicant. If the application is filed outside of the prescribed six weeks period, an application for condonation must be made, failing which the Labour Court will not have jurisdiction to entertain the application.

 

[37]         The applicant in a review must furnish the Registrar and each of the other parties with a copy of the record or a portion of the record, as the case may be.

 

[38]         On receipt of the record, the Registrar issues a notice in terms of Rule 7A (5) that the record has been received and may be uplifted, and requiring the applicant to collect the record within seven days. The applicant must make certified copies and furnish the Registrar and each of the other respondents with copies of such portions of the record as may be necessary for the purposes of the review.

 

[39]         This is ordinarily done under cover of a notice in terms of Rule 7A (6).

 

[40]         This Court has accepted that a review application is by its nature an urgent application and that it requires prosecution with diligence and urgency.[8] This is supported by the Practice Manual wherein an applicant in a review application is required to ensure that all the necessary papers in the application are filed within 12 months of the date of the launch of the application and where this time limit is not complied with, the application will be archived and be regarded as lapsed unless good cause is shown as to why it should not be archived.

 

[41]         The amendments to section 145 of the LRA, which took effect on 1 January 2015, are specifically aimed at expediting the prosecution of review applications. In terms of section 145(5) of the LRA, the applicant in a review application must apply for a date for the matter to be heard within six months of delivery of the application failing which the court may, on good cause shown, condone a late application for a date for the matter to be heard.

 

The respondent

 

[42]         A respondent in a review application has a secondary, but equally important, responsibility to ensure timeous compliance with time frames. This was confirmed in Bezuidenhout v Johnson NO and Others,[9] where the court held that:

 

‘At the same time, the respondent party must not sit by idly and bide his time, waiting for a particular undefined moment in time when the applicant party’s delay may enable him to apply to have the delaying party barred from seeking further relief or to have the matter dismissed, by reason of delays in pursuing it. I am of the view that, if an applicant drags his feet, the respondent party also bears a responsibility to ensure that disputes are resolved expeditiously. This obligation of a respondent party is, in my mind, a primary one in respect of ensuring that the applicant party complies with time periods applicable to it.’

 

The arbitrator and bargaining council

 

[43]         Rule 7A (3) provides that the arbitrator and the CCMA or bargaining council must timeously comply with the direction, as set out in an applicant’s notice of motion, which will call on them to dispatch, within 10 days after receipt of the notice of motion, the record of the proceedings sought to be corrected or set aside, together with such reasons as are required by law or desirable to provide, and to notify the applicant that it has been done.

 

[44]         If the record is not dispatched within the required time period, the applicant or any other interested party may file an application to compel in terms of Rule 7A(4).

 

[45]         Rule 36(1) of the Rules for the Conduct of proceedings before the CCMA requires that a record of all processes, except conciliation, must be kept. In Doornpoort Kwik Spar CC v Odendaal and others,[10] the court considered Rule 36(1) and referred to Rule 36(2), which provides that a record may be kept by legible handwritten notes or by means of an electronic recording. The Court noted that the wording of Rule 36 appeared to be ‘couched in peremptory terms’ and held that:

 

‘An applicant has a right to a reasoned award in respect of the dispute that was adjudicated before the CCMA. When an award is the subject of a review application, the record of the proceedings before the statutory body will also become important. In fact, once a party has filed its notice of motion and founding affidavit, he or she has the right to the record of the proceedings insofar as it may be necessary for the purposes of the review. In this regard rule 7A(8) of the rules specifically provides that an applicant in review proceedings may amend, vary or add to the terms of the notice of motion and may supplement the supporting affidavit filed in the review application in light of the record of the proceedings. An applicant who is not afforded this opportunity by virtue of an incomplete or non-existent record may well be prejudiced. The CCMA is a creature of statute and as such it derives its powers and obligations from the LRA. It is therefore obliged to adhere to these statutorily imposed duties – most notable for purposes of this judgment – to keep a proper record of the proceedings conducted before it.’

 

[46]         In his dissenting judgment in Toyota SA Motors (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others,[11] Zondo J (as he was then) stated that:

 

‘It is the duty of a commissioner of the CCMA conducting an arbitration to ensure that a proper and complete record of those proceedings is kept and, together with the CCMA, to ensure that, if subsequently, there is a review application, a proper and complete record is made available to the Registrar of the Labour Court. It may well be that a failure by a commissioner to perform this important function constitutes misconduct or a gross irregularity in the proceedings as envisaged in s 145(2)(a) and (b), respectively. If that is so, then it would be possible to have an award reviewed and set aside on either of these two grounds in s 145(2)(a) and (b) if a commissioner failed to perform this function. I mention this without expressing a definitive view since this was not argued.’

 

[47]         It is evident from the applicable authorities that it is the duty of a commissioner of the CCMA or bargaining council, conducting an arbitration, to ensure that a proper and complete record of those proceedings is kept and, to ensure that, if subsequently, there is a review application, a proper and complete record is made available to the Registrar of the Labour Court.

 

[48]         Furthermore, an applicant has a right to the record of the proceedings in so far as it may be necessary for the purposes of his or her review application.

 

[49]         The keeping of a record of the arbitration proceedings is not only practical and required by the CCMA Rules, but is also necessary as it provides objective material about what transpired at the arbitration proceedings, which assists the court in the proper exercise of its review powers. As a general rule, it will always be necessary to have the record of the arbitration proceedings available to this Court when arbitration awards are reviewed under section 145 of the LRA.

 

[50]         In instances where the record is lost or inaudible, the first step for the applicant is to assess whether the entire recording or only a portion of it is lost or inaudible. This is necessary and of relevance because Rule 7A(5) requires of an applicant to make available copies of such portions of the record as may be necessary for the purposes of the review. Where the issue on review is limited or on a point of law only, the entire transcript of the proceedings may not be necessary for purposes of the review. The applicant should assess its grounds for review and consider whether the available portion of the record is sufficient to proceed with the review and whether this Court would be in a position to consider and determine the review on such limited portion of the record.

 

[51]         The Constitutional Court and the Labour Appeal Court (LAC) confirmed that the Court is not precluded from determining a matter on less than a complete record in appropriate cases where the matter can be decided on the material before Court. Where the interests of justice demand it, a pragmatic approach is appropriate despite the inadequacies of the record.[12]

 

[52]         Where the entire recording is lost or where the entire recording (or material portions thereof) is inaudible and it has been established that the record is necessary for the Court to decide the review application, the parties should attempt to reconstruct the record.

 

[53]         It is the duty of the applicant in a review application to initiate the steps to drive the process to finality, the duty of the arbitrator and the CCMA or bargaining council is to facilitate the process and all the parties concerned are expected to cooperate in the process of reconstruction.

 

[54]         In Rand Water Board v CCMA and others,[13] the applicant approached the CCMA for assistance with the reconstruction of the record. After not receiving a response from the CCMA, the applicant sent a reconstructed record to the CCMA and asked for the commissioner to provide his comments thereto. No comments were received. The third respondent raised an objection to the applicant’s failure to provide a complete record of the proceedings. The Court held that:

 

‘[46] The responsibility to record and to keep a record of the proceedings rests with the CCMA and includes the dispatch of the record to the court in terms of rule 7A(2)(b) of the rules of the Labour Court. Thus it was the duty of the CCMA, as soon as it was informed that the tape was blank, to ask the commissioner to avail her handwritten notes and to facilitate reconstruction of the record of the proceedings.

 

[47] The CCMA has not provided any explanation for the manner in which it dealt with the issue of the record in this matter. In this regard the CCMA failed to perform its legal duty as required by rule 7A of the rules of the court. The argument of [the CCMA] that the applicant did not compel the CCMA to produce the record is rejected. This argument suggests that CCMA will only carry out its duties only when compelled by the court to do so. In fact this approach is reflective of the approach and the manner in which the CCMA treated the attorneys of the applicant.’

 

[55]         The process of reconstruction had been explained by the LAC in Lifecare Special Health Services (Pty) Ltd t/a Ekuhlengeni Care Centre v Commission for Conciliation, Mediation & Arbitration & others[14] (Lifecare) as follows:

 

‘[17] A reconstruction of a record (or part thereof) is usually undertaken in the following way. The tribunal (in this case the commissioner) and the representatives (in this case Ms Reddy for the employee and Mr Mbelengwa for the employer) come together, bringing their extant notes and such other documentation as may be relevant. They then endeavour to the best of their ability and recollection to reconstruct as full and accurate a record of the proceedings as the circumstances allow. This is then placed before the relevant court with such reservations as the participants may wish to note. Whether the product of their endeavours is adequate for the purpose of the appeal or review is for the court hearing same to decide, after listening to argument in the event of a dispute as to accuracy or completeness.

[18] I appreciate that reconstructing parts of the record some two years after the event will be time consuming and may prove frustrating. However, the situation is not all bleakness. In addition to the commissioner's handwritten notes, Mr Mbelengwa filed a full closing argument of nine typewritten pages which should prompt his recollection. Those concerned are expected to cooperate. With the requisite cooperation, there is reason to hope that a fair reproduction will be feasible.’

 

[56]         The steps set out in Lifecare should be followed to reconstruct an inaudible or incomplete record.

 

[57]         Where the entire recording or a material portion thereof is lost and reconstruction proved to be impossible or a futile exercise or if the outcome of the process is inadequate to proceed with the review application, the applicant should first approach the respondent and attempt to obtain consent to remit the matter back to the CCMA or bargaining council for a hearing de novo because of the absence of a transcribed record and the impossibility of adjudicating the review without a record. The applicant may, in the event consent is given, approach the Registrar for an order to that effect and by agreement between the parties, to be made by a Judge in chambers. This step will promote the expeditious resolution of the dispute.

 

[58]         In any of the aforesaid events, where the respondent refuses to consent to remit the dispute for a hearing de novo, the applicant may approach the Judge President for a direction on the further conduct of the review application.

 

[59]         Clause 11.2.4 of the Practice Manual provides as follows:

 

‘If the record of the proceedings under review has been lost, or if the recording of the proceedings is of such poor quality to the extent that the tapes are inaudible, the applicant may approach the Judge President for a direction on the further conduct of the review application. The Judge President will allocate the file to a judge for a direction, which may include the remission of the matter to the person or body whose award or ruling is under review, or where practicable, a direction to the effect that the relevant parts of the record be reconstructed.’

 

[60]         Clause 11.2.4 allows an applicant to approach the Judge President for a direction on the further conduct of the review application in very limited circumstances. Firstly, where the record of the proceedings under review has been lost. This may happen for instance when the arbitrator’s recording has been stolen or destroyed and there is no recording that could be transcribed. Secondly where the recording is of such poor quality that it is inaudible.

 

[61]         Only if the process of reconstruction proved to be fruitless or impossible or if the outcome of the process is inadequate to proceed with the review application, may the applicant approach the Judge President for direction on the further conduct of the review application.

 

[62]         An applicant seeking such direction from the Judge President should set out in detail what steps were taken to ensure that a record, necessary for the review application, was placed before Court, why the available record is inadequate to proceed with the review and that the parties have done what they could to place a proper record before Court but are unable to do so.

 

[63]         The Judge President and Judges in this Court are not to advise parties to file an application to compel in terms of Rule 7A(4) or to order them to reconstruct a record where the need to do so is obvious. Parties should explore and exhaust the remedies available to them before approaching this Court for direction on the further conduct of the review application.

 

[64]         In my view, clause 11.2.4 of the Practice Manual is abused by some parties and practitioners and their abuse contributes significantly to an unnecessary increase of the workload of Judges in this Court. Clause 11.2.4 is abused to the extent that parties or practitioners write letters or file applications seeking ‘direction on the further conduct of the review application’ long before such direction is needed. This clause is abused and used as a backdoor to get advice and guidance from this Court, when the necessary steps (for instance to file an application to compel or attempt to reconstruct the record) have not been taken or exhausted.

 

[65]         The review Court must consider the totality of the evidence and decide whether the decision made by the arbitrator is one that a reasonable decision maker could make, based on the evidence that was adduced.[15]

 

[66]         If the Labour Court is not placed in possession of necessary portions of the record, the question arises whether the Court should, in the absence of the record, dismiss the review, grant the review for want of record or undertake the determination of the review on the material available.[16]

 

[67]         Although it is the duty of the applicant in a review application to furnish the other parties and the Registrar with a copy of the record, necessary for purposes of the review, there is a distinction to be drawn between a scenario where the record is available, yet the applicant did nothing to have it transcribed and filed and a scenario where the applicant made serious attempts to file the record, but cannot do so because the record either does not exist or is not made available.

 

[68]         In Department of Transport, North West Province v Sebotha No and Others,[17] the Court, considering the test to be applied in an application for review, held that in the absence of a proper record it is unable to determine whether or not there is a basis for the criticism against the commissioner’s findings and said that:

 

‘[17] In order to apply the above test the court needs to have before it the record of the arbitration proceedings. As a general rule the complete record of everything that transpired during the arbitration proceedings needs to be placed before the court…

[18] The responsibility to ensure that a proper and complete record is placed before the court rests with the applicant. Failure to place before the court a complete record by the applicant could result in the dismissal of the review application on that ground alone.’

 

[69]         In Balasana v Motor Bargaining Council and others,[18] the Court was faced with a difficulty in that there was no transcript of the arbitration proceedings. The Court held that the general view adopted in cases where there is a defective or incomplete record, is to refuse to entertain the review particularly where the applicant has failed to show what steps he took to find the missing parts or to have it reconstructed. It was however held that:

 

‘I am of the view that dismissing the applicant’s review application and bringing the matter to finality on that basis would equal both an injustice and unfairness… It is therefore my view that the practical approach based on the dictates of justice and fairness is to remit the matter to the first respondent for the dispute to consider afresh before a commissioner other than the second respondent.’

 

[70]         In Baloyi v Member of the Executive Committee for Health and Social Development, Limpopo and others,[19] the Labour Court dismissed an application for review on the merits, with the application having been determined on the basis of the commissioner’s handwritten notes. On appeal, the Constitutional Court acknowledged that there may be cases where it will be contentious to determine a review of arbitration proceedings in the absence of a proper record and considered the remedies to follow when no proper record is available. The Constitutional Court held that it was improper to dismiss the review application without a proper record of the arbitration proceedings:

 

‘…the Labour Court should have remitted the matter to the bargaining council as proposed by the arbitrator and the bargaining council itself. The mechanical recordings of the arbitration had been misplaced and could not be traced. This meant that the arbitration proceedings would commence afresh before a different arbitrator. None of the parties, including the applicant, were opposed to this proposal. The Court chose to decide the matter on the defective record before it and made an order adverse to the applicant, when it should not have done so.’

 

[71]         In Fountas v Brolaz Projects (Pty) Ltd and others,[20] the LAC was faced with an appeal where the Labour Court dealt with a review application, despite the absence of relevant portions of the record and held that:

 

‘[31] In my view there can be no doubt that the Court a quo should not have proceeded to consider the merits of the review application in this matter when there was material evidence missing in the record. What the Court a quo was required to have done was to consider whether the first respondent as the applicant in the review application had taken all reasonable steps to search for such evidence and or to reconstruct the record. If the first respondent had taken all reasonable steps to either find the missing evidence or to reconstruct the record and these had been to no avail, it could then have had to deal with the question of what should be done. If, however, it was of the view that the first respondent had not taken all reasonable steps that it could and should have taken, it would have had to choose one of two options.

[32] The one would be to dismiss the application on the basis that the first respondent had had ample opportunity to take those steps and had no acceptable explanation for not having done so. This is not an option that the Court a quo could have taken lightly because it would have shut the door in the face of the first respondent who would not have been able to have set aside an arbitration award that may well not have deserved to stand. However, it is a decision that a Court may take in an appropriate case. 

[33] The other option that the Court a quo could take would have been to postpone the review application or to strike it off the roll to enable the first respondent or all parties to take such steps as might not have been taken earlier to search for the missing evidence or to reconstruct the record. The latter option is one that a Court will usually adopt unless it is dealing with a case where considerations of fair play between the parties, finality of litigation and others demand that the application be dismissed without the consideration of the merits. This would occur 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 do so.’

 

[72]         The principles had been set out by the LAC in Palluci Home Depot (Pty) Ltd v Herskowitz and others[21] as follows:

 

‘Where all the facts required to make a determination on the disputed issues are before a reviewing court in an unfair dismissal or unfair labour practice dispute such that the court “is in as good a position” as the administrative tribunal to make the determination, I see no reason why a reviewing court should not decide the matter itself.’

 

This review application

 

[73]         In casu, the Applicant seeks the review and setting aside of the arbitration award and initially sought an order for the arbitration award to be reviewed and set aside and for the matter to be remitted for a hearing de novo. The relief sought was however amended and the Applicant now seeks an order that the arbitration award be reviewed and set aside and be substituted for a finding that the Respondent’s dismissal is fair.

 

[74]         The Applicant explained that as early as 2012, the Respondent was requested to agree to a remittal of the matter for an arbitration de novo, due to the unavailability of the transcript of the proceedings. The Respondent did not agree to the proposal and the Applicant’s case is that it has since become impracticable and highly prejudicial to the Applicant for the matter to be remitted for an arbitration de novo. The Respondent was dismissed in 2006, for an incident that occurred in 2004 and the prejudice for the Applicant is that witnesses may no longer be available, their memories would have faded and documents might be lost.

 

[75]         In casu, it is evident that the CCMA and the arbitrator failed to adhere to their statutorily imposed duties to keep a proper record of the proceedings conducted before it and to facilitate the reconstruction of the record, where it was found to be incomplete.

 

[76]         The Applicant has the right to the record of the proceedings in so far as it may be necessary for the purposes of the review. Rule 7A(8) specifically provides that an applicant in review proceedings may amend, vary or add to the terms of the notice of motion and may supplement the supporting affidavit filed in the review application in light of the record of the proceedings. In casu, the Applicant is not afforded this opportunity by virtue of an incomplete record and the prejudice to the Applicant, is obvious.

 

[77]         In my view, the Applicant has taken all reasonable steps to reconstruct the record and there is no possibility that a further attempt will result in a better record, wherefore I am not inclined to dismiss the application for lack of a complete record. This is not a case where the record was available, but the Applicant just took no steps to file it.

 

[78]         The most appropriate relief would have been to remit the matter for a hearing de novo, but I am alive to the prejudice that such an order will cause – the relevant events in this matter happened almost 20 years ago, the award that is the subject of review, was issued in May 2010 and this review application was filed in July 2010.

 

[79]         It is unfortunate that the parties could not agree to a remittal in 2012, when it became evident that the record was problematic. At that point, a hearing de novo would have been the most practical way to resolve the issue and to deal with the review application. The reality is however that a remittal will no longer be feasible or fair and it is not relief that this Court would be inclined to grant, should the arbitration award be reviewed and set aside.

 

[80]         I am further of the view that it will be improper to substitute the outcome of the arbitration award with a finding that the Respondent’s dismissal was fair. This would be an order that will be prejudicial and averse to the Respondent, and it is not one this Court is prepared to make on an incomplete record that is of very little to no assistance to this Court. It would not be in the interest of justice to substitute the outcome of the arbitration proceedings, based on the record before this Court, as this Court is just not “in as good a position” as the arbitrator to make a determination on the fairness of the Respondent’s dismissal.

 

[81]         However, Mr Thompson for the Respondent submitted that this Court cannot grant the Applicant any relief because the review application is deemed withdrawn as the Applicant failed to file the record of the proceedings within 60 days, as per the provisions of the Practice Manual.

 

[82]         In Ralo v Transnet Port Terminals and others,[22] (Ralo) the Court accepted the legal definition of ‘deemed’ as set out in the Namibian authority of Municipal Council of the Municipality of Windhoek v Marianna Esau[23] where the Court held that the word ‘deemed’ is considered to have a conclusive effect.[24] This Court concluded by stating the following:

 

‘…The plain and unambiguous wording of the Practice Manual is to the effect that the applicant must be regarded as having withdrawn the review application.’

 

[83]         The serving and filing of the record in a review application is provided for in clause 11.2 of the 2013 Practice Manual as follows:

 

‘11.2.1      Once the registrar has notified an applicant in terms of Rule 7A (5) that a record has been received and may be uplifted, the applicant must collect the record within seven days.

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. The application must be accompanied by proof of service on all other 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.’

 

[84]         It is evident that the calculation of the 60-day period, for the purposes of Rule 7A (6), is calculated of the date on which the applicant is advised by the Registrar, by way of a Rule 7A (5) notice, that the record has been received and must be collected.

 

[85]         In casu, the review application was filed in July 2010 and the Practice Manual came into effect on 1 April 2013. The requirements of the Practice Manual did not exist until April 2013. In Macsteel Trading Wadeville v Van der Merwe NO and others[25] (Macsteel) the LAC considered the Practice Manual and held that:

 

‘The Practice Manual came into effect during April 2013; midway through the review application. It, therefore, applies to it.’

 

[86]         I accept that the Practice Manual applies to this application, with effect from 1 April 2013.

 

[87]         However, in casu, no Rule 7A (5) notice was ever sent out by the Registrar, thus the 60 day period within which the record had to be filed, was not triggered.

 

[88]         Mr Thompson further submitted that the Applicant failed to comply with clause 11.2.7 of the Practice Manual, which requires that all the necessary papers in a review application must be filed within 12 months of the date of the launch of the application and the Registrar must be informed that the application is ready for hearing. Where this time limit is not complied with, the application will be archived and be regarded as lapsed unless good cause is shown why the application should not be archived or be removed from the archive. 

 

[89]         This Court and the LAC have considered the status of the Practice Manual^[26] and held that, in essence, the manual promotes uniformity and consistency in practice and procedure and sets guidelines on standards of conduct expected of those who practise and litigate in the Labour Court and it promotes the statutory imperative of expeditious dispute resolution. The Practice Manual is not merely a guideline which litigating parties may or may not comply with at their leisure, but it has binding force.^[27] It follows that the Applicant was obliged to comply with it. The consequences of the failure to comply with the Practice Manual were described in Macsteel^[28] as:

 

‘As indicated, the review application was archived and regarded as lapsed as a result of NUMSA’s failure to comply with the Practice Manual. There was also no substantive application for reinstatement of the review application, and no condonation sought for the undue delay in filing the record. As contended for by Macsteel, the Labour Court was, as a matter of law, obliged to strike the matter from the roll on the grounds of lack of jurisdiction, alternatively, give Macsteel an opportunity to file a separate rule 11 application demonstrating why the matter should be dismissed or struck from the roll on the basis of undue delay.’

 

[90]         The only way for the Applicant to save its review application, is to show good cause to resurrect it and to have it reinstated. In Samuels v Old Mutual Bank[29] ‘good cause’ was described as follows:

 

‘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.’

 

[91]         In casu, the same fate meets the Applicant and the status of the review application is ‘archived’ and ‘regarded as lapsed’.

 

[92]         In view thereof, the relief sought by the Applicant cannot be granted.

 

The section 158(1)(c) application

 

[93]         The Respondent filed an application to make an arbitration award dated 19 May 2010 and issued under case number GAJB30125-08 an order of Court in terms of the provisions of section 158(1)(c) of the LRA.

 

[94]         In terms of the arbitration award, the Applicant was ordered to reinstate the Respondent retrospectively with effect from August 2008 and she was ordered to report for duty on 1 July 2010.

 

[95]         This application in terms of section 158(1)(c) was filed on 1 June 2020, more than 10 years after the arbitration award was issued.

 

[96]         In her founding affidavit the Respondent stated that the Applicant has not complied with the arbitration award and refused to reinstate her, as per the award. The Respondent submitted that due to the Applicant’s failure to comply with the award, she is left with no alternative but to approach this Court for relief.

 

Analysis

 

[97]         Section 158(1)(c) of the LRA provides that this Court may make any arbitration award or any settlement agreement an order of the Court. The Court has a discretion in this regard.

 

[98]         In SA Post Office Ltd v Communication Workers Union on behalf of Permanent Part-Time Employees[30] (SAPO), the LAC held that:

 

‘The purpose of making a settlement agreement or an arbitration award an order of court is to enforce compliance with the agreement or the award. The agreement or the award must therefore be unambiguous and unequivocal and not open to any dispute. This does not mean that an award or agreement that provides for payment of salary or wages for a certain period is not clear and precise. The parties could know or easily ascertain by having regard to documentation like payslips or an independent accounting exercise what the amount is (although ideally the amount should be clearly set out to avoid unnecessary delays and expensive exercise to ascertain the exact amount due). What all this means is that before the Labour Court will grant an order sought in terms of s 158(1)(c) of the LRA it must be satisfied that, at the very least:

 

(i)       the agreement is one which meets the criteria set in s 158(1)(c) read with s 158(1A) of the LRA, and if it is an award, that it satisfies the criteria set in s 142A of the LRA;

(ii)   that the agreement or award is sufficiently clear to have enabled the defaulting party to know exactly what it is required to do in order to comply with the agreement or award; and

(ii)      there has not been compliance by the defaulting party with the terms of the agreement or the award.’

 

[99]         In SAPO,[31] the LAC further held that:

 

‘Once the Labour Court is satisfied with all of the above then it must, nevertheless, exercise its discretion whether to grant or refuse the order. In exercising the discretion, the court must take relevant facts and circumstances into account, such as are necessary to satisfy the demands of the law and fairness. Necessarily, each case must be decided on its own facts and circumstances. There is, otherwise, no closed list of factors to be taken into account. A relevant factor is the time it took the party seeking the relief to launch the application to make the settlement or award an order of court. The Labour Court may, for example, be more reluctant to make an award for reinstatement of employees an order of court where the employees unreasonably delayed in seeking the enforcement of the award, yet a delay of years in seeking to make an award for payment of a sum of money may not be grounds for refusing to make the award an order of court. Finally and most crucially it must be remembered that the purpose of making an agreement or award an order of the Labour Court is to compel its enforcement, or enable its execution and not for some other purpose.’

 

[100]     This Court has a discretion to make an arbitration award an order of Court and in exercising that discretion, the relevant facts and circumstances must be taken into consideration, such as are necessary to satisfy the demands of the law and fairness.

 

[101]     In casu, taking the relevant facts into account and considering the demands of law and fairness, this Court is not inclined to make the arbitration award an order of Court for a number of reasons.

 

[102]     Firstly, the LAC has confirmed that the purpose of making a settlement agreement or an arbitration award an order of court, is to enforce compliance with the agreement or the award. This Court would only exercise its discretion to make an arbitration award an order of Court if there was sufficient evidence of non-compliance. In casu, the Respondent submitted that the Applicant has filed a review application to review and set aside the arbitration award, but that the Applicant did not pursue the review application, as required by law and the provisions of the Practice Manual, and that the review application is deemed to have been withdrawn.

 

[103]     The Respondent stated that, as the review application was not prosecuted to finality, even though the pleadings closed a long time ago, it would be just and equitable to grant her the relief she seeks in terms of section 158(1)(c).

 

[104]     The Respondent submitted that the undue delay in prosecuting the review application, undermined the LRA and its objective of speedy resolution of disputes, which has seriously prejudiced her, sitting without an income since her dismissal.

 

[105]     I have fully dealt with the causes of the delay in the prosecution of the review of the arbitration award and the challenges faced by the Applicant in that process. It is not a fair and accurate account of events to merely state that the Applicant unduly delayed the prosecution of the review application, as if this is a case where a perfect record was available and all the parties cooperated to expedite the finalisation of the review application. That is simply not the facts before this Court.

 

[106]     It is evident from the arbitration award that the Respondent was ordered to report for duty on 1 July 2010. The Respondent alleged that after receiving the arbitration award, she reported for duty in terms of the reinstatement order. She explained in her founding affidavit that she had reported to the Applicant’s head office at 28 Harrison Street, Johannesburg, on 11 February 2009, but she was informed by someone from the HR department to leave the premises, as the Applicant would take the matter further.

 

[107]     In its answering affidavit, the Applicant disputed the aforesaid version and stated that the arbitration award was only issued on 19 May 2010 and that the Respondent could not have acted as she claims, on 11 February 2009, a date preceding the arbitration award. The Respondent filed a replying affidavit, but she did no more than to barely deny the Applicant’s version.

 

[108]     There is not any convincing averment made by the Respondent to show that she had indeed complied with the terms of the arbitration award by reporting for duty, as she was ordered and that notwithstanding her compliance and efforts, the Applicant refused to reinstate her. The version presented by the Respondent that she reported for duty in compliance with the arbitration award on a date (11 February 2009) that predates the award (19 May 2010) is so improbable that it cannot be accepted.

 

[109]     The Respondent therefore failed to show that she had indeed complied or attempted to comply with the arbitration award. Put differently: the Respondent seeks compliance with the award but failed to demonstrate her own compliance with the award.

 

[110]     Secondly, the Respondent waited from May 2010 until June 2020 to approach this Court with an application in terms of section 158(1)(c). There is no explanation tendered whatsoever for the delay of more than 10 years before this application was filed. The Respondent filed an application to dismiss the Applicant’s review application in July 2013 which application was dismissed in March 2018, whereafter she waited another period, inactively, in excess of two years to file this application.

 

[111]     This Court has a discretion to make the arbitration award an order of Court and where the delay to approach this Court for such an order, is so excessive, unreasonable and unexplained as in this case, it is a factor that weighs against the Respondent and militates against the relief she seeks.

 

[112]     Lastly, the purpose of making an arbitration award an order of Court is to enforce compliance. The LRA specifically provides for the speedy and effective resolution of labour disputes. I fail to see how this Court could or should compel compliance in respect of an order for reinstatement that dates back to July 2010. To compel reinstatement thirteen years after the order of reinstatement and almost 17 years after the date of dismissal, when the Respondent took no steps during this period to enforce the award or compel compliance with it, would undermine the purpose of the LRA and would not be in the interest of justice.

 

[113]     It follows that this application has to fail.

 

Costs

 

[114]     Costs should be considered against the requirements of the law and fairness. This Court has a wide discretion in awarding costs and in my view this is a matter where the interests of justice will be best served by making no order as to costs.

 

[115]     As already alluded to, this matter shows the devastating consequences if labour disputes are not resolved speedily and expeditiously.

 

[116]     In the premises, I make the following order:

 

 

Order

           1.The Applicant’s review application is archived and declared as lapsed in terms of the provisions of clause 11.2.7 of the Practice Manual;

           2.The First Respondent’s application in terms of section 158(2)(c) of the Labour Relations Act is dismissed;

           3.There is no order as to costs.

 

 

Connie Prinsloo

Judge of the Labour Court of South Africa

 

Appearances:

 

On behalf of the Applicant:                       Advocate D T Skosana SC

Instructed by:                                           State Attorney, Pretoria

 

On behalf of the First Respondent:          Mr M Thompson of Thompson

Attorneys

 

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