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THE LABOUR COURT OF SOUTH AFRICA

(HELD AT JOHANNESBURG)

(JUDGMENT)

Of interest to other Judges

CASE NO: PR 193/2019

In the matter between:

VUYANI KENNETH ZONO                                                                        Applicant

and

THE MINISTER OF JUSTICE AND

CORRECTIONAL SERVICES                                                                    Respondent

In re:

MINISTER OF JUSTICE AND CORRECTIONAL SERVICES             Applicant

and

VUYANI KENNETH ZONO                                                                       First Respondent

GENERAL PUBLIC SERVICE SECTORAL

BARGAINING COUNCIL                                                                         Second Respondent

ADV W BLUNDIN N.O.                                                                              Third Respondent

Date enrolled: 15 July 2020 (via Zoom)

Date of judgment: 29 July 2020. Judgment distributed by email at 14:00

Summary: Application to reinstate review application deemed withdrawn in terms of clause 11 of practice manual after failure to file record within the prescribed time limit. Approach to be adopted affirmed.

JUDGMENT

VAN NIEKERK J

[1]          This matter has its roots in the tragic events that occurred at St Alban's Maximum Security Correctional Centre, Port Elizabeth, on 26 December 2016 when a violent fracas between officials and offenders had fatal consequences. The first respondent (the employee) was dismissed because it was found that he had been responsible for the incident in at he failed to ensure proper supervision and control of the offenders and to properly manage the situation.

[2]        There are four applications before the court; a review  application  and  three ancillary or interlocutory applications. The first is a review application in which the applicant seeks to review and set aside an arbitration award issued by the third respondent (the arbitrator). The arbitration hearing was conducted over twelve days, spanning a period of eight months. In his award, issued on 27 June 2019,  the arbitrator found that the dismissal of the first respondent (the employee) by the department was procedurally and substantively unfair. The arbitrator ordered the department to reinstate the employee with retrospective effect from the date of his dismissal, without any loss of benefit.

[3]           The second and third applications, filed on 1 November 2019, are respectively applications by the employee to dismiss the review application, and for an order in terms of s 158 (1) (c) of the LRA making the arbitration award an order of court. For convenience, I refer to this application as 'the dismissal application'. The dismissal application was set down on an expedited basis for hearing on 7 May 2020. Three days before the hearing, the applicant launched the fourth application, on an urgent basis. The orders sought include the condonation of the late filing of the notice of opposition and answering affidavit in the application to dismiss, the late filing of the review application, the applicant's failure to comply with Rule 7A (8), the late filing of security in terms of s 145 (7) and (8), the late filing of the record in the review application, and an order for the reinstatement of the review application and leave to proceed with the review application. I refer to this application as the 'urgent application'.

[4]              On 7 May 2020, the court postponed the urgent application to 25 June 2020 and granted leave for the filing of answering and replying affidavits. On that date, the parties agreed that the matter be postponed to 15 July 2020 on the basis that the applicant would file the record of the arbitration proceedings by 9 July 2020 and that the court would hear both the urgent application and the enforcement application.

[5]              A narrative of the prosecution of the review and related applications is necessary. The review application was filed on 27 August 2019. The applicant contends that the arbitrator commenced reviewable irregularities in relation to the conduct of the proceedings under review; in particular, that he failed to properly assess the evidence before him and reached conclusions that are not supported by the evidence. The review application was filed outside of the six-week time limit established by s 145 (1) of the LRA, with no application to condone the late filing of the application. On 4 Sep ember 2019, the employee filed a notice of intention to oppose the review application.

[6]               The dismissal application was filed on 1 November 2019. In the dismissal application, the applicant deals (unnecessarily) at some length with the employee's employment history and the proceedings under review. It is only in the last five pages of a 76-page affidavit that the point is made that the review application was filed out of time without any application for condonation. In addition, two points of a technical nature are taken; the first that the decision to review was not taken by the authorised delegated authority, the second that the applicant had failed to file security as required by s  145. At the time the dismissal application was filed, the 60-day time period within which the record had to be filed had not yet elapsed - that time period expired only on 21 January 2020. On 29 November 2019, the applicant filed a notice of the filing of security in terms of s 145{7) and (8). On 6 December 2019, the department filed a notice of intention to oppose and an answering affidavit. On 22 January 2020, the employee filed a replying affidavit. In the  reply,  the  applicant   raises  the  further  grounds  of  the  department's  late opposition to the application to dismiss, the late filing of the answering affidavit, the absence of any annexures to the answering affidavit, and the department's failure to file the record  within the prescribed 60 day period. (The replying affidavit was filed on 22 January 2020, a day after the expiry of the 60-day period.)

[7]              Paragraph 11.2 of the Practice Manual reads as follows:

11.2.2                   For the purposes of Rule 7A (6), records must be filed within 60 days of the date on which the applicant is advised by the registrar that the record has been received.

11.2.3                   If the applicant fails to file the 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...

[8]               In the recent case of Overberg District Municipality v IMATU & others {C 157/18, 8 June 2020), my colleague Lagrange J summarised the application of these provisions. He observed that prior to the advent of the practice manual, there was no time limit prescribed for the filing of a record of proceedings under review, and that the 60-day time limit was introduced to minimise delays in the prosecution of review applications. The practice manual is binding. In Samuels v Old Mutual Bank (2017) 38 ILJ 1790 (LAC), the LAC stated:

(15) The Practice  Manual  is not intended  to change or amend the existing Rules of the Labour Court but to enforce and give effect to the rules, the Labour Relations Act as well as various  decisions  of the courts  on the matters addressed practice manual and the rules. Its provisions therefore are binding. The Labour Courts discretion in interpreting and applying the provisions of the Practice Manual remains intact,  depending  on the facts  and circumstances  of  a particular matter before the court.'

In Macsteel Trading Wadeville v Van der Merwe N.O and others (2019) 40 ILJ 798 (LAC), the LAC noted that the underlying objective of the practice manual is the promotion of the statutory imperative of expeditious dispute resolution (referring to the decision of the Constitutional Court   Toyota Motors    (Pty) Ltd v Commission  for Conciliation, Mediation and Arbitration and others [2016] 3 BLLR 217 (CC)). At paragraph 23 of the judgment, the LAC noted ‘it [the practice manual] is binding on the parties and the Labour Court’.

[9]             It is also clear from Samuels and Macsteel that when a review application lapses, is deemed withdrawn or dismissed in terms of clauses 11.2.3, 11.2.7 or 16.3 respectively, it remains so unless and until the applicant succeeds in an application to reinstate or retrieve the application, thus restoring its status as a pending application (see Overberg Municipality at paragraph 24). Overberg Municipality concerned, as does this case, the application of clause 11.2.3, and a failure to file the record of proceedings under review within the prescribed 60-day period. Lagrange J said the following (footnotes omitted):

[25] In this application the applicable deeming provision is clause 11.2.3. To date, there are no decisions of the Labour Appeal Court dealing with the interpretation of clause 11.2.3 as such. However, the LAC has indicated its approach to review applications which are deemed to have lapsed if all the necessary papers in a review application have not been filed within twelve months' of launching an application. In, Samuels the LAC set out the steps to be taken:

'(4) In order for a file to be brought back to life, an interested party has to act in terms of clause 16.2 which requires an application, on affidavit, for the retrieval of the file on notice to all other parties to the dispute to be launched. The provisions of rule 7 will apply to such an application. This is such an application brought by the appellant in the court a quo. Clause 16.3 provides that:

Where a file has been placed in archives, it shall have the same consequences as to further conduct by any respondent party as to the matter having been dismissed.'

[26]             In Samuels case, a review application had been archived after lengthy delays by the applicant, which were mainly the fault of the CCMA. The LAC granted the applicant leave to proceed with the review application. The court set out the approach to be adopted when considering whether to resurrect the file from its archived state:

'(17) In essence, application for the retrieval of a file from the archives is a form of an application for condonation tor failure to comply with the court rules , time frames and directives. Showing good cause d ands 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.'

[10]      In Overberg, the court also gave consideration to the relevance of steps taken by the applicant subsequent to the review application being deemed withdrawn. The court observed that once the legal status of the review application in a pending application ceases by operation of one of the deeming provision in the practice manual, there can be no enforceable obligation on either party to file for the court process and the main application. The question then is whether the actions of an applicant subsequent to that da e have any relevance in the determination of the application for reinstatement. Lagrange J held that an applicant party that has been dilatory and is seeking an indulgence to revive a review application must necessarily satisfy the court that in the interim, it has done what it can to remedy its failure which led to the application being deemed inactive in the first place and done whatever else it could reasonably do so that the matter would be ready for hearing if reinstated. In other words, steps taken during the time that the application is inactive have a material bearing on the success of attempts to revive it (see paragraph 38 of the judgement). What was required was for  the applicant to demonstrate  that it acted promptly  in  launching the reinstatement application and that  it took  further  professional  steps in a  bone fide  attempt to  ensure the expeditious finalisation of the review if reinstatement is permitted (see paragraph 39).

[11]       In the myriad of lapses for which condonation and other relief is sought in the present instance, what is required first is a consideration of the application to reinstate the review application. As I have indicated, this is an element of the urgent application, and requires the court to consider whether good cause has been established. If the reinstatement of the application is refused, then the status of the review application  remains one of an application  withdrawn  by the  applicant. In that case, as the above authorities indicate, there is no application before the court and the applications to condone the late filing of the review and to dismiss the review on this and other grounds are rendered moot.

[12]      First though, there is the question of whether the urgent application is indeed urgent. Mr Grogan, who appeared for the employee, submitted that the application is not urgent, and that it should be struck from the roll. When the application was heard on 7 May 2020, an order was granted in terms of which an answering and replying affidavit on the merits were to be filed. The order does not record any express reservation of the issue of urgency. In these circumstances, I must assume that my colleague who presided at the hearing was satisfied that the application was urgent. If it were not so, she would have said as much, and struck the application from the roll.

[13]      Both parties accept that on account of the applicant's failure to file the record within the prescribed 60-day period, the application is deemed, by virtue of clause 11.2.3 of the practice manual, to have been withdrawn. The record ought to have been filed by 21 January 2020. Although the bulk of the record was filed on 9 July 2020, as at the date of the hearing of this application, the complete record was yet to be filed.

[14]      The explanation  for the delay begins on 25 October 2019, when Jele states that he received a Rule7A (2) notice from the registrar that the bargaining council had delivered various items including a disc comprising the record of the arbitration hearing. He states that he personally attended at the office of the registrar where he requested copies of the item set out in the notice. The member of staff to whom he spoke undertook to communicate with him as soon as the copying had been done. This occurred some two weeks later. Jele states that he assumed that  the disc would have been transcribed and that when he uplifted a copy of the record, he noticed that it had not been transcribed. How Jele could assume that it was the registrar's obligation to transcribe the record is difficult to appreciate given the provisions of Rule 7A and practice in this court. In any event, Jele then requested a transcription service to provide a quotation for the transcription of the record. Between mid November and into the second week of December 2019, Jele states that he \NBS  in conversations  with the staff at the transcription  services. As far as he was aware,  the record was required to be filed by 24 January  2020.  On 19 December 2019, the typed record of the arbitration proceedings was emailed to Jele. He was not in his office on that date immediately thereafter he says he took his previously arranged annual leave and that he had sight of the type record only on 15 January 2020 on his return from vacation. On perusing the transcription, he noticed  that it was incomplete  and that certain page number   and dates had not been transcribed. He raised these issues with the transcription services on 15 January 2020 and was advised that the transcription was the best the transcription service could do in the circumstances. On the same date Jele says that he forwarded the type record to counsel and raised the issue of the incompleteness of the transcription with them. The counsel who had represented the applicant at the arbitration hearing proposed that they should meet with the employee's representatives to agree on a transcription of the record. He was advised to meet with the previous  counsel.  The envisaged  meeting never  took place, since  the council was engaged in an unrelated matter in another province. Jele records that the employee's attorney had arranged for a running record to be available at the arbitration hearing. His counsel was not satisfied, with his transcript and expressed his dissatisfaction regularly  during  the hearing as and when these transcriptions became available. Jele arranged for a meeting with the 'previous counsel and the applicant's present junior counsel for 21 February 2020. By 18 February 2020, the previous counsel considered the different aets of transcribed proceedings and expressed his dissatisfaction with those transcripts. He reported on the state of the record and advised that the running record kept by the employee's representatives should be used as the review record. Jele states that the arranged meeting could not take place until he had obtained the complete running record. He emailed the employee's attorney on 24th of February 2020 and requested copies of the transcripts of the last two meetings of the arbitration. These transcripts had not been received after a request was made to the employee's attorney of record because of an outstanding invoice. Jele sought transcripts for 29 - 30 November 2018, and 11 - 13 March 2019 to compile the review record. After receipt of a quotation from the employee's attorneys on 20 February 2019, he sent the quote to the accounts department on the same day. The lockdown imposed intervened and payment has not yet been received.

[15]          On 27 April 2020, Jele addressed an email to the employee's attorney regarding the urgent application, set down for 7 May 2020. In the letter, Jele records that he does not have in his possession the transcribed record of the last two sittings in the arbitration proceedings and that he had written requesting same and recorded further that an invoice had been sent, that the invoice had been submitted but that the lockdown had intervened and prevented the processing of the invoice. The letter records further that Jele was not in possession of the complete set of the annexures in the arbitration proceedings and that those filed by the bargaining council with the registrar are incomplete. Jele requested the employee's attorney to provide him with a copy of the bundle's and sought agreement that the record will be complete once the transcription of the last two sittings of the arbitration hearings on the annexures referred to have been received '.

[16]           There is a parallel narrative in respect of the bundle of documents that were to be filed as part of the record. It will be recalled that in response to the registrar's notice that the bargaining council had delivered various items comprising the record, that Jele requested  the registrar's  office  to make copies  of the  items  set out in the notice. He collected these during mid-November... Jele states that he went through the copies and noticed that the bundles were incomplete and in sequentially numbered. He states that this did not raise concern with him as the council had represented the applicant at the arbitration hearing had complete sets of the bundles. On 16 March 2020, a meeting was requested with counsel to resolve all outstanding aspects relating to the record. Counsel could not make the meeting. A meeting was convened on 20 March 2020 with the applicant's present counsel to determine in what respects the bundles were incomplete and to enable Jele to obtain copies of the missing portions. Jele states that it was ascertained that the employees bundle was complete but difficulty was experienced collating the applicants bundle. Counsel undertook to provide details of outstanding items by 23 March 2020. On that date, Jele was advised that counsel had been unable to collate the applicant's bundle because of missing items and in sequential numbering. These comments are forwarded to the counsel who had represented the applicant at the arbitration hearing. The respondent by stating, in effect, that you did not understand the email. He pointedly stated that as the attorney of record in the matter, Jele ought to have the same set of papers and that'/ can't understand what is happening here anymore. I thought you have filed (as you advise me in Application to Dismiss matter -Inter Appl) and you await hearing'. Jele telephoned the counsel and explained why the applicant's bundle was  needed  and  counsel said that he required the papers in the dismissal application for consideration. The lockdown then intervened before Jele could take any further steps.

[17]          An  application  for  reinstatement  of  a  review  application  deemed  to, ha ve  been withdrawn is, in essence, an application for condonation. It is incumbent '?n the applicant to show good cause why, in this case, the record of the proceedings under review was not filed within the prescribed time limit. Condonation is not there merely for the asking, nor are applications for condonation a mere formality (see NUMSA  v  Hillside  Aluminium  [2005]  6  BLLR'  601 (LC);  D. errick  Grootboom v National Prosecuting Authority & another [20.14} 1 BLLR (CC)). A party seeking condonation must make out a case for the indulgence sought and bears the onus to satisfy the court that condonation should be granted.

[18]          This court is required to exercise a discretion, having regard to the extent of the delay, the explanation proffered for that delay, the applicant's prospects of success, and the relative prejudice to the parties that would be occasioned by the application being granted or refused.

[19]          In this court, that formulation,  which has its roots in Melane v Santam Insurance

Co Ltd 1962 (4) SA 531 (A), has long been qualified by the rule that where there is an inordinate delay that is not satisfactorily explained, the applicant's prospects of success are immaterial. In National Union of Mineworkers v Council for Mineral Technology [1999] 3 BLLR 209 (LAC) the LAC said the following:

... without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused.

[20]           This principle was reaffirmed in Collett v Commission for Conciliation, Mediation and Arbitration [2014] 6 BLLR 523 (LAC), a unanimous judgement of the LAC, Musi AJA held as follows:

There are overwhelming precedents in this court, the Supreme Court of Appeal and the Constitutional Court for the proposition that where there is a flagrant or gross failure to comply with the rules of court condonation may be refused without considering the prospects of success. In NUM v Council for Mineral Technology [1999] 3 BLLR 209 (LAC) at para 10, it was pointed out that in considering 'whether good cause has been shown the well-known approach adopted in Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 532C-D ... Should be followed but:

'There is a further principle which is applied and that is without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without good prospect of success, no matter how good  the explanation for delay, an  a  tion  for  condonation  should  be refused.'

The submission that the court a quo had to consider the prospects of success irrespective of the unsatisfactory and unacceptable explanation for the gross and flagrant disregard of the rules is without merit.

[21]           In the present matter, the complete record remains outstanding, more than five and a half months after the 60-day time limit expired. I accept that there were difficulties in compinng the record, and that after the record was made available in October 2019, Jele made efforts to ensure that a complete and accurate record was complied. What I cannot ignore, however, is that he did so in  circumstances where the provisions of the practice manual were simply flouted. Jele was clearly aware of the deadline, and his failure to meet it. What he fails to explain is why he did not have recourse to the procedure established by clause 11.2.3 as soon as he realised that the record would not be available in time. He did not seek the consent of the employee's attorneys to any extension of time within which to file the record,  nor did he seek  a directive from  the  Judge President.  What clause

11.2.3 affords is a remedy to an applicant in a review when difficulties in filing the record timeously are encountered. All that need to be done is to seek an extension by consent, failing which the Judge President may be approached to issue any directive appropriate in the circumstances, given the particular difficulties that may have been encountered in preparing the record. It is not open to an applicant simply to ignore these remedies and continue with the preparation of the record as if the 60-day time limit did not exist. It should be recalled that in terms of the practice manual, a review application is to be treated with the same degree of urgency and diligence as an urgent application. What the facts disclose in the present instance is an approach that displays no sense of urgency or even any sense of concern that the applicant was in breach of its obligations.

[22]      After the deadline for the filing of the record had elapsed, the compilation of a complete record continued to be conducted at a leisurely pace. Transcripts of the proceedings in November 2018 and March 2019 were requested only on 24 February 2020. There is no explanation from Jele as to why he then requested copies of transcripts obtained by the employee's attorney in circumstances where it would appear that the counsel whg represented the applicant at the arbitration hearing was not satisfied with the accuracy of those transcripts. The transcript was again requested on 20 March in circumstances where the employee's attorney pointed out that invoices in respect of previous transcripts had not been paid.

[23]           In short. the delay in compiling and filing a record is significant, if not excessive. The explanation for the delay is not satisfactory, particularly in that it discloses no meaningful attempts to meet the prescribed deadline and no attempt to seek an extension to the deadline, either by consent or by way of a directive. Indeed, the explanation for the delay is not so much an explanation rather than a log of events in the course of a nine-month period during which the albeit incomplete record was compiled and filed. In the absence of a satisfactory explanation for an excessive delay, it is not necessary to determine the applicant's prospects of success in the review application, and the application to reinstate the review application stands to be dismissed.

[24]          Even if I were to have regard to the applicant's prospects of success, in my view, they are not so overwhelming that the interests of justice require that the review application be reinstated. First, the hurdle faced by any applicant in a review application is purposefully set high. This court is empowered to intervene if and only if the decision to which the arbitrator came is so unreasonable that no reasonable decision-maker could come to that decision on the available evidence. As the Labour Appeal Court has often observed, given the threshold that applies, it is not often that applicants will succeed in a review. In the present instance, the primary attack on the award is one that goes to the assessment of evidence. Where a review is sought on these grounds, the court st be particularly cautious not to blur the line between a review and an appeal. Arbitrators are allowed to be wrong, and a fragmented,  piecemeal  analysis of the award should be avoided. In regard to the first charge brought against the employee, the arbitrator drew conclusions from the evidence to the effect that the employee was not guilty of dereliction of duty in that he failed to properly supervise and control the offenders concerned, or that he failed to properly manage the incident that occurred at St Albans on 26 December 2016.,Different and perfectly reasonable decision-makers might have come to a different conclusion. On the face of it, the arbitrator's award is not so disconnected from the evidence that it appears to fall outside of a band of decisions to which reasonable decision-makers could come.

 [25]         Also not strictly relevant, given the primacy of the application to reinstate the review application, is the applicant's conduct more generally viewed. The no· ce of motion in the urgent application discloses lapses that extend beyond the filing of the record, and include the late filing of the review application itself (without the award under review being annexed), for which condonation was sought by way of the answering affidavit in the dismissal application. That affidavit and the notice of intention to oppose that application were filed only on 6 December 2019, 15 days out of time and without annexures. The security required to be filed in terms of s 145 was filed only on 25 March 2020, some seven months after the review application was filed. All of these failings, viewed holistically and in conjunction with the failure to file the record timeously, are indicative of litigation conducted with no regard for the rules of court. Given the basis of my decision, it is not necessary for me to make any findings in regard to the balance of the urgent application, or the application to dismiss.

[26]           In the absence of a pending review application, there is no reason to deny the application to have the arbitration award made an order of this court

[27]            Finally, in relation to costs, the court has a broad discretion in terms of s 162 to make orders for costs according to the requirements of the law and fairness. The employee has succeeded in opposing the urgent application and in his application to have the arbitration award made an order of court The employee was awarded substantive relief some 14  months ago and has been substantially  prejudiced on account of the applicant's conduct in fatting to prosecute the review application within the stipulated time frames. There is no cogent reason to deny him his costs in all of the applications that serve before the court.

I make the following order:

1.      The application to reinstate the review application is dismissed, with costs, such costs to include the costs of the review application, the application to dismiss the review application and the urgent application enrolled for hearing on 7 May 2020, as well as the costs of the postponement on 25 June 2020, when costs were reserved.

2.    In terms of s 158 (1)(c) of the Labour Relations Act, the arbitration award issued by the third respondent in the review application on 27 May 2019 under case number GPBC 2396/17, is made an order of court.

Andre van Niekerk

Judge of the Labour Court of the Labour Court

APPEARANCES

For the applicant (in the review application) Adv. HJ van der Linde SC, with him Adv. R Laher, instructed by the state attorney

For the respondent: Adv. JG Grogan, instructed by Wheeldon Rushmere & Cole Inc.

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