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30 Nov 2021
BY Suemeya Hanif

The perils of non-compliance with the Labour Court Practice Manuals in review applications

In several recent Labour Court decisions, Judges have expressed their displeasure with the failure by applicants in review applications to comply with the Labour Relations Act,1995 (“the LRA”), the Rules for the Conduct of Proceedings in the Labour Court (“the Labour Court Rules”) and the Labour Court Practice Manual (“the Practice Manual”).

Rule 7A (6) of the Labour Court Rules requires that an applicant in a review application deliver a copy of the record, or portion of the record, as the case may be, and a copy of the reasons filed by the person or body to the Registrar of the Labour Court and each of the other parties. In terms of clauses 11.2.2 and 11.2.3 of the Practice Manual the record must be filed within 60 days from being advised that the Registrar has received the record and, if it is not filed within this period, the applicant will be deemed to have withdrawn the application unless the applicant has requested and was granted an extension to file the record.

In the recent case of Giwusa obo Dlamini v Sekhabisa NO and Others, the applicant in the review application, Giwusa, delivered the review application late and failed to apply for condonation. The court took a dim view of conduct of this nature and found that it demonstrated a clear disregard for the court, the rules of the court and the LRA.

In addition, the applicant filed the record 2 years after the review was delivered and did not apply for condonation for this delay. In its answering affidavit, the third respondent, Nampak Glass, raised a jurisdictional issue based on the late delivery of the record and the absence of a condonation application. Giwusa responded in the replying affidavit to this issue but did not deliver a separate condonation application. In its response, Giwusa inter alia stated that there was an understanding between the parties that the record would be delivered late. The court rejected this argument and held that, in terms of the Practice Manual, consent should have been obtained from the other side and, if refused, Giwusa should have applied to the Judge President in chambers for an extension of time to deliver the record. In addition to the late delivery of the record, it was incomplete. The court held that had Giwusa approached the Judge President for direction on this issue, the file would have been allocated to a Judge who would have directed the parties on how best to deal with the issue. The matter was accordingly struck off the roll due to lack of jurisdiction.

In Gema v National Commissioner of South African Police Service and Others, the record was filed outside the 60 day period and no response was received from the opposing side to the applicant’s request for an extension to deliver the record. The court found that no response does not equate to consent and the applicant should have applied to the Judge President for an extension. The court further held that the interpretation to be given to clause 11.2.3 of the Practice Manual is that the applicant is required to take the steps set out therein within the 60-day period and not after this period had expired; this is because the objective of the LRA, the Labour Court Rules and the Practice Manual is to resolve disputes expeditiously. The court aligned itself with previous judgments where it was held that, when a matter is deemed to be withdrawn, it ceases to exist and is not a live matter to be entertained. However, the applicant is not without recourse and may apply for condonation for delivering the record outside of the time period and for not taking the steps referred to in 11.2.3 to have the review application reinstated.

In addition, the applicant had also failed to apply for a case number within 6 months from the date of delivery of the review application as required in section 145(5) of the LRA and once again failed to apply for condonation in this regard. The opposing party raised this issue in its answering affidavit and the applicant sought to address this in its replying affidavit. The court held that applying for condonation in a replying affidavit is not appropriate as it deprives the other party of an opportunity to oppose or respond to the condonation.

There was yet another issue of non-compliance with the Practice Manual faced by the applicant that was not addressed by the delivery of a condonation application. Clause 11.2.7 of the Practice Manual inter alia provides that an applicant must ensure that all the necessary papers in a review application are filed within 12 months from the date the review application is launched. If this is the case 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. The court dismissed the matter for lack of jurisdiction. In this matter, the applicant delivered the review application on 4 October 2018 and the replying affidavit on 5 March 2020.

Considering the three instances of non-compliance with the Practice Manual and the LRA the court dismissed the matter from the roll for lack of jurisdiction.

Our courts are increasingly dismissing matters for want of compliance with the LRA, the Labour Court Rules and the Practice Manual. A common mistake made by litigants is to ignore the Practice Manual as they do not consider it law. Our courts have consistently held that it is binding on parties and must be adhered to. To avoid incurring costs in pursuing review applications only to have them dismissed for lack of jurisdiction, applicants should familiarise themselves with the rules of the Labour Court, sections of the LRA and the clauses in the Practice Manual regulating review applications and comply with them. Any non-compliance with a rule of the labour court, section of the LRA or clause of the Practice Manual may be condoned provided that a separate application for condonation is brought and all the requirements are satisfactorily addressed. Addressing a jurisdictional point regarding non-compliance with a rule, section or clause and seeking condonation in a replying affidavit will not suffice and litigants should refrain from this practice.

 

Suemeya Hanif

Executive | Employment

shanif@ENSafrica.com

+27 82 787 9934