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THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

 

Not Reportable

CASE NO: JR 2803/17

 

In the matter between:

 

AMBRO STEEL                                                                           Applicant

 

and

 

COMMISIONER MAPUTLE MOHLALA N.O.                             First Respondent

 

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION                                              Second Respondent

 

PATRICK RAMOTHWALA                                                         Third Respondent

 

NUMSA                                                                                       Fourth Respondent

 

Heard:            28 July 2022

Reasons:      22 August 2022

Summary:     Review application launched outside the prescribed six weeks’ period – the application was served onto the respondents, outside the prescribed six weeks period. No application for condonation. The application is defective and the Labour Court lacks jurisdiction over it. Held: (1) The application is dismissed for want of jurisdiction. Held: (2) There is no order as to costs.

 

REASONS

 

MOSHOANA, J

 

Introduction

 

[1]          An unfortunate incident happened in this matter. On 28 July 2022, this Court delivered an ex tempore judgment with full reasons for the order that dismissed the application for want of jurisdiction with no order as to costs. Shortly thereafter, the applicant sought to transcribe the ex tempore, only to be informed by the transcribers that the judgment was not recorded at all. Such compelled this Court to furnish these reasons afresh.

 

Pertinent facts

 

[2]          On or about 13 November 2017, the applicant, Ambro Steel (Ambro) became aware of an arbitration award issued by Commissioner Maputle Mohlala (Mohlala) in terms of which Mohlala found that the dismissal of Patrick Ramothwala (Ramothwala) was substantively unfair. Mohlala ordered Ambro to reinstate Ramothwala retrospectively and to pay him arrear wages together with interest. The arbitration award is dated 12 November 2017. There is no allegation in the applicant’s founding papers as to when was the arbitration award served on it. It however became common cause that the arbitration award was served onto Ambro on 13 November 2017.

 

[3]          Disenchanted by the arbitration award, Ambro launched a review application on 22 December 2017. However, on Ambro’s version service of the review application was effected on 18 January 2018. It however became common cause that the application was served onto Ramothwala, who was represented by the National Union of Metalworkers of South Africa (NUMSA), on 30 January 2018. On the version of Ramothwala, Ambro became dilatory in the prosecution of the review application. As a result, the review application was deemed withdrawn or became lapsed.

 

[4]          Consequently, Ramothwala launched a rule 11 application seeking to have the review application dismissed. The review application was ripe for hearing. The registrar of this Court enrolled both the review application and the rule 11 application. On the enrolment date, Ramothwala raised a preliminary point alleging that the review application was launched outside the prescribed six weeks period. The preliminary point was fully argued and upheld for reasons that shall follow hereunder.  

 

Evaluation

 

[5]          Ambro received the arbitration award on 13 November 2017. Section 145 (1) (a) of the LRA perspicuously states that within six weeks of the date that the award was served on the applicant, an application seeking to set aside an arbitration award may be launched. In the Labour Court, reviews are launched in terms of rule 7A of the Labour Court Rules. In terms of rule 7A (1), a party desiring to review a decision or proceedings is obliged to deliver a notice of motion to the person and to all other affected parties. Rule 1 defines deliver to mean serve[1] on other parties and file with the registrar. Service is regulated by rule 4.

 

[6]          It became common cause that the review application was delivered on 30 January 2018. Reckoning the six weeks period from 13 November 2017, the period expired on or about 29 December 2017. Accordingly, the application was delivered a month outside the prescribed six weeks period. Section 145 (1A) provides that the Labour Court may on good cause shown condone the late filing of an application in terms of subsection (1). Ambro failed to show good cause. Absent good cause, this Court lacks jurisdiction to entertain the review application. Owing to this situation, it was not necessary to entertain the rule 11 application seeking to dismiss the same review application for dilatory reasons.

 

[7]          It was for the above stated reasons that this Court dismissed the application with no order as to costs. 

 

G. N. Moshoana

Judge of the Labour Court of South Africa

 

Appearances:

 

For the Applicant:                    Mr Q Donaldson of Donaldson Attorneys Inc,

Johannesburg.

 

For the Respondents:             Mr M D Maluleke

 

Instructed by:                            Agbarakwe Attorneys, Johannesburg.

 

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