Not reportable

THE LABOUR COURT OF SOUTH AFRICA,

HELD AT CAPE TOWN

CASE: C 1163/2018

In the matter between:

LUVUYO MBINYASHE	First Applicant	

and		
METAL AND ENGINEERING INDUSTRIES BARGAINING COUNCIL	First Respondent	
COMMISSIONER HANNELI BENDRMAN N.O	Second Respondent	
SAFINTRA ROOFING SOUTH AFRICA PROPRIETARY LIMITED	Third Respondent	

Date of Hearing:	25 February 2021

Date of Judgment:	25 February 2021

This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing down the written judgment is deemed to be 15h00 on 25 February 2021

Summary: (Review-misconduct dismissal-transcript of recording incomplete- record - record probably not filed on time in accordance with clause 11.2.2 of the labour court practice manual- clause 11.2.7 not complied with and review application lapsed and archived in terms of that provision, even if clause 11.2.2 was in fact complied with – application struck of the roll)

JUDGMENT

LAGRANGE J

Introduction and chronology of the review application

      This review application was enrolled for a hearing using Zoom at 11:00 on 25 February 2021. Initially the applicant had agreed that the matter could be determined on the papers but subsequently requested a hearing using Zoom. Accordingly, arrangements were made for him to appear in the hearing using a computer made available at the court by the court manager.
      By 11:33 the applicant had not arrived at court and I am advised that efforts by my secretary and the court manager to contact him on his cell phone were fruitless as his phone was set to his voicemail setting.
      The applicant, Mr L Mbinyashe (‘Mbinyashe’) is conducting this review application on his own in respect of an award in favour of the employer party, the third respondent [‘Safintra’] handed down on 19 November 2018.
      Mbinyashe filed his review application in good time on 10 December 2018 on the labour court. Safintra filed a notice of opposition on 12 December 2018.
      By 26 April 2019, the bargaining Council had lodged the record of proceedings with the registrar.
      After that there was a very long delay before any further steps were taken by Mbinyashe to advance his review application. It was only on 18 November 2019 that he delivered the record and his notice in terms of Rule 7A [8] [b] to Safintra. Since Safintra’s attorneys of record had notified the applicant in the notice of opposition that all court process should be served on their offices, he should not have delivered the record to the company’s offices. Strictly speaking, this was not a proper service of the record as Safintra had designated its attorneys of record as the address for serving any court process.
      Be that as it may, a notice of set down was served on 20 November 2020 on Safintra’s attorneys of record. As they had no prior knowledge of the record being filed they investigated the court file and realised the record had been erroneously delivered to Safintra’s offices by Mbinyashe. They then took steps to file an answering affidavit and condonation application. No answering affidavit opposing the condonation application was filed by Mbinyashe, nor did he file a replying affidavit in the review application.

The application

      Before this review application can be considered by the court a number of difficulties need to be addressed.
      Firstly, because the record and rule 7A [8] [b] notice were only delivered on 18 November 2019 whereas the record had been lodged by the bargaining Council on 18 April 2019, it would appear that Mbinyashe did not comply clause 11.2.2 of the labour court practice manual, which states:
‘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.’
It seems highly improbable that the registrar did not notify Mbinyashe that the record had been received until 25 August, or thereabouts, which would have been the latest date for Mbinyashe to have filed the record in compliance with clause 11.2.2. On the face of it therefore it appears that the review application is probably deemed withdrawn in terms of clause 11.2.3 of the practice manual, which states:
‘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.’
   If it is in fact the case that the application is deemed withdrawn there is no application before the court to consider unless Mbinyashe successfully applies for the reinstatement of the review application.
   In any event, since the review application was launched on 10 December 2018 and since Mbinyashe only served the record and his rule 7A [8] [b] notice on 19 December 2019, ignoring the question whether that service was defective because it was not served on Safintra’s attorneys of record, then the review application is regarded as lapsed in terms of clause 11.2.7 of the practice manual, which states:
‘11.2.7 A review application is by its nature an urgent application. An applicant in a review application is therefore required to ensure that all the necessary papers in the application are filed within twelve (12) months of the date of the launch of the application (excluding Heads of Arguments) and the registrar is informed in writing that the application is ready for allocation 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 to be archived or be removed from the archive.’
It was clearly in error that the registrar to enrolled the application for hearing in the circumstances.
   In terms of clause 11.2.7, an application which has lapsed can only be reinstated if the applicant shows good cause why it should not remain archived. In the circumstances, the matter should not have been enrolled for hearing of the review application in the absence of Mbinyashe bringing an application supported by an affidavit in which he shows good cause for reinstating his review application. The current status of the review application is therefore that it remains lapsed and archived. It is not possible on the contents of the court file to determine with certainty whether it should be deemed withdrawn in terms of clause 11.2.3, but it has clearly lapsed in terms of the provisions of clause 11.2.7.
   In view of the current status of the review application, it is not necessary to make any finding whether application is also defective because Mbinyashe has not filed a complete transcript of the evidence, but should Mbinyashe succeed in persuading the court that the review application should be removed from the archive and reinstated, this issue will also have to be addressed by him.
   In view of the above the following order is made:

Order

      Noting that the review application has lapsed in terms of clause 11.2.7 of the labour court practice manual, the application is struck off the roll, and may not be reinstated until such time as the Applicant is successful in applying to have the lapsed application retrieved from the archive and reinstated.
      No order is made as to costs.

Lagrange J Judge of the Labour Court of South Africa

Appearances		
For the Applicant:	No appearance	

For the third respondent Respondent	
J Norval instructed by ENS Africa Inc.