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26 Feb 2019
BY Lee Masuku

Undue delay in prosecuting review applications: a cautionary tale

Delaying the prosecution of a review application can carry the risk of a court refusing to hear the application. In Macsteel Trading Wadeville v Francois van der Merwe and others, the Labour Appeal Court (“LAC”) had to decide whether the Labour Court erred in:

  • failing to deal with an undue delay in prosecuting a review application, simply because no application in terms of rule 11 of the Rules for the Conduct of Proceedings in the Labour Court (the “Rules”) was not before it; and
  • reviewing, setting aside and substituting an arbitration award rather than remitting the matter to the relevant bargaining council for a new hearing.

In 2009, Macsteel Trading Wadeville charged its employee Mr Lemson Chiloane with misconduct for his involvement in planning and orchestrating an unprotected and unlawful work stoppage. The work stoppage allegedly included intimidation and incitement to violence. Pursuant to a disciplinary hearing, Mr Chiloane was dismissed from Macsteel’s employ.

To challenge his dismissal, Mr Chiloane referred a dispute to the Metal and Engineering Industries Bargaining Council. On 4 May 2010, the arbitrator issued an award in which he found Mr Chiloane’s dismissal fair, both procedurally and substantively.

On Mr Chiloane’s instructions, on 22 June 2010, the National Union of Metalworkers of South Africa (“NUMSA”) instituted proceedings to review the arbitration award. With no explanation given, NUMSA only filed the full record during January 2013, 19 months after it had been transcribed.

Macsteel raised the issue of NUMSA’s undue delay in its answering affidavit and requested that the Labour Court dismiss the review application on this basis. NUMSA did not provide any explanation for the delay in reply, nor did it seek condonation from the Labour Court. The review application was heard on 24 February 2016, about six years after being instituted.

The Labour Court declined to deal with NUMSA’s undue delay in prosecuting its review application. Instead, it took issue with the fact that Macsteel had not brought a Rule 11 application to dismiss the review. The Labour Court proceeded to decide the review on its merits and held that the arbitration award contained various reviewable irregularities. It then set the award aside and substituted it with an order for the retrospective reinstatement of Mr Chiloane, going back to 11 June 2010, on terms and conditions no less favourable than those which applied to him prior to his dismissal.

On appeal, the LAC pointed out that while there was nothing specific in the Rules nor the Labour Relations Act, 1995 (the “LRA”) that provided for the dismissal of a review application on the ground of undue delay, there were certain provisions in the Rules that gave a reviewing court wide discretion to take any action to achieve the objectives of the LRA. One such objective was effective and speedy dispute resolution.

In this regard, the LAC quoted the decision of the Constitutional Court in Toyota SA Motors (Pty) Ltd v Commissioner for Conciliation, Mediation and Arbitration and Others, where it held that:

“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 the employer who may have to reinstate workers after many years.”

The LAC noted that in order to effect the LRA’s “expedition” requirement, and insofar as review applications were concerned, clause 11 of the Practice Manual of the Labour Court provided that:

  • an applicant in a review application must file the review record within 60 days of the Registrar of the Labour Court notifying it that it has been received;
  • absent consent being given by a respondent or an application being granted by the Judge President of the Labour Court for the extension of the 60-day period, or failure to file the record within this prescribed period will result in a review application being deemed to have been withdrawn; and
  • where a review application has not been set down for hearing within 12 months of it being launched, it will be archived and is regarded as having lapsed, unless an applicant shows good cause why this ought not to be done.

The LAC emphasised that the Practice Manual enforces and gives effect to the Rules and the LRA and is, by its nature, binding on the Labour Court and parties appearing before it. However, it recognised that, depending on the facts and circumstances of each case, the Labour Court retains a residual discretion on how the Practice Manual ought to be applied.

The LAC held that the review application in this case had been archived and was regarded as lapsed, where NUMSA filed the review record approximately 20 months after instituting the review application and where the application was set down six years after being instituted. In such circumstances, and in absence of NUMSA seeking condonation for the delay, the Labour Court had no jurisdiction to determine the review application.

The LAC further held that a Rule 11 application was not a prerequisite for the Labour Court to consider whether the review ought to have been dismissed, or struck off the roll, on the grounds of undue delay. In the absence of NUMSA applying for the reinstatement of the review or seeking condonation for the undue delay in filing the record, the Labour Court was obliged to strike the application from the roll on the grounds of lack of jurisdiction where the relevant provisions of the Practice Manual had not been complied with by NUMSA. It is also worthwhile noting that the LAC stated that even if the Labour Court was not inclined to strike the matter off the roll, it ought to have given Macsteel an opportunity to bring a Rule 11 application rather than delving into the merits of the review.

Finally, the LAC held it was entitled to interfere on appeal where the Labour Court dealt with the merits of NUMSA’s review application when it had no jurisdiction to do so. Accordingly, Macsteel’s appeal was upheld and the order of the Labour Court was set aside and replaced with an order striking NUMSA’s review application from the roll.

Thoughts on the judgment

This judgment highlights the serious consequences of delaying the prosecution of a review application. While the reality is that often records of arbitration proceedings received by parties are incomplete and this may delay proceedings, one must always ensure that the time periods recorded in the LRA, the Rules and the Practice Manual are complied with. Where it is not possible to comply with such time periods, the necessary consent or condonation must be sought. Failure to heed to these time periods could result in a court refusing to hear a review application which may have, ordinarily, had good prospects of success.

Reviewed by Peter le Roux, an executive consultant in ENSafrica’s employment department.