Article 75/2022

Labour court practice manual: clause 11.2.3

How did the labour court recently identify the purpose of its practice manual? In the scenario where there is non-compliance with the required 60-day time period in respect of the filing of the record of proceedings under review, is the defaulting party simply to apply for condonation or also required to bring a separate application to revive the review application?

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The labour court, in Overberg District Municipality v Independent Municipal and Allied Trade Union obo Spangenberg and Others (2021) 32 SALLR 24 (LC); (2021) 42 ILJ 1283 (LC), dealt with the above issue as follows:

  • clause 11.2.3 reads as follows:

‘If the applicant fails to file a record within the prescribed period, the applicant will be deemed to have withdrawn the application, unless the applicant has during that period requested the respondent’s consent for an extension of time and consent has been given.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.’

  • prior to the advent of the practice manual, an applicant in review proceedings was not bound to any fixed timetable for the filing of the record, once it had been lifted for transcription.  A party that was pursuing the review purely for dilatory purposes might delay matters by not filing the record.  The only way the respondent party could bring matters to a head was to apply, under rule 11, to dismiss the application, after putting the applicant on terms.  An application which had not been prosecuted timeously could be dismissed on account of the excessive delay, taking into account the explanation for the delay and the prejudice suffered by the applicant party (Toyota SA Motors (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2016) 37 ILJ 313 (CC), at paragraph [36]; Member of the Executive Council, Department of Sport, Recreation, Arts and Culture, Eastern Cape v General Public Service Sectoral Bargaining Council and Others (2015) 36 ILJ 2893 (LC), at paragraphs [25] and [26])
  • a feature of the practice manual, which was introduced in 2013, are provisions to try to ensure that a review application could not languish unattended and unresolved, until a respondent party felt compelled to bring a rule 11 application to dismiss it
  • in Samuels v Old Mutual Bank (2017) 38 ILJ 1790 (LAC), the labour appeal court confirmed that:

‘[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 in the practice manual and the Rules. Its provisions therefore, are binding. The Labour Court’s 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 NO and Others (2019) 40 ILJ 798 (LAC), the labour appeal court reaffirmed the proper interpretation of the manual in Samuels:

‘[22]  The underlying objective of the Practice Manual is the promotion of the statutory imperative of expeditious dispute resolution. It enforces and gives effect to the rules of the Labour Court and the provisions of the LRA. It is binding on the parties and the Labour Court. The Labour Court does, however, have a residual discretion to apply and interpret the provisions of the Practice Manual, depending on the facts and circumstances of a particular case before the court.’

  • in short, the practice manual clarifies time periods not contained in the court rules within which certain steps must be taken in prosecution of a review and, furthermore, indicates the adverse consequences to non-compliance, entailing that same will be deemed to have been withdrawn
  • in Ralo v Transnet Port Terminals and Others (2015) 26 ILJ 2653 (LC), at paragraph [10], the court confirmed the effect of a deeming provision:

‘To the extent that the applicant contends that the meaning of the word “deemed” is such that the dispute between the parties remains unresolved and that the application has not been withdrawn, the meaning of “deemed” in a context similar to the present has been the subject of an instructive judgment by the Labour Court of Namibia. While Municipal Council of the Municipality of Windhoek v Marianna Esau (LCA 25/2009, 12 March 2010) concerned the lapsing of appeals, the wording of the Rule under consideration in that instance is not dissimilar. Rule 17(25) of the Rules of the Labour Court of Namibia provide that an “appeal to which this Rule applies must be prosecuted within 90 days after the noting of such appeal, and unless so prosecuted it is deemed to have lapsed.” The word “deemed” in this instance was clearly considered to have conclusive effect – in the absence of the prosecution of the appeal within the prescribed period the appeal was held to have lapsed. (See also Pereira v Group Five (Pty) Ltd and others [1996] All SA 686, at 698, where the court referred with approval to Steel v Shanta Construction (Pty) Ltd 1973 (2) SA 537 (T), in which Coetzee J stated that the word “deemed” means “considered” or “regarded” and is used to denote that “something is a fact regardless of the objective truth of the matter”.) The plain and unambiguous wording of the practice manual is to the effect that the applicant must be regarded as having withdrawn the review application.’

  • there are no labour appeal court decisions dealing with the interpretation of clause 11.2.3 – however, there are labour appeal court decisions dealing with review applications deemed to have been lapsed if all the necessary papers in such application have not been filed within a 12-month period of launching an application, in terms of clause 11.2.7 of the manual
  • clause 11.2.7 of the practice manual reads as follows:

‘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.’

  • in Samuels, the labour appeal court 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 that 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 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.”’

  • clause 16.2 of the practice manual provides that:

‘A party to a dispute in which the file has been archived may submit an application, on affidavit, for the retrieval of the file, on notice to all other parties to the dispute.  The provisions of Rule 7 will apply to an application brought in terms of this provision.’

  • in Samuels, a review application had been archived after lengthy delays by the applicant, which were mainly the fault of the CCMA.  The labour appeal court 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, an application for the retrieval of a file from the archives is a form of an application for condonation for failure to comply with the Court Rules, timeframes and directives. Showing good cause demands 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.’

  • in Macsteel Trading, the labour appeal court also highlighted the effect of a lapsed and archived review application.  In that matter, the labour court decided a review which had been enrolled six years after it had been launched.  The court would not consider the respondent’s argument that the application should have been dismissed because of the dilatory conduct of the applicant, for which the latter had not even sought condonation, because the respondent had not brought an application under rule 11 to dismiss the application on this ground.  The labour appeal court held that the labour court should not have declined to deal with the applicant’s delay after failing to strike the application off the roll.  At least the labour court should have given the respondent an opportunity to bring a rule 11 application to dismiss the review.  In any event, the court had erred in entertaining the review application in the first place and should have struck it off the roll for lack of jurisdiction:

‘[24] Macsteel had raised NUMSA’s undue delay in prosecuting the review application in its answering affidavit in the review application, but since that application had in effect lapsed and been archived, the Labour Court had no jurisdiction to determine the issue of the undue delay raised there. In the circumstances, Macsteel would have been required to bring a separate rule 11 application for the review application to be dismissed or struck from the roll on the grounds of NUMSA’s undue delay in prosecuting it. But a rule 11 application was not a prerequisite for the Labour Court, in this particular instance, to consider whether, on the grounds of undue delay, the review application should be dismissed or struck from the roll.’

  • a number of decisions of the labour court have dealt with review applications deemed to have been withdrawn under clause 11.2.3 and include the following:
  • Dagane v Safety and Security Sectoral Bargaining Council and Others (2018) 39 ILJ 1592 (LC), wherein it was held that a condonation application was required by the defaulting party
  • SA Municipal Workers Union on behalf of Mlalandle v SA Local Government Bargaining Council and Others (2017) 38 ILJ 477 (LC), wherein it was held that a formal application for reinstatement or, alternatively, a condonation application is required
  • Sol Plaatjie Local Municipality v SA Local Government Bargaining Council and Others (PR192/15) (2017) SALCPE 11 (13 June 2017), wherein it was held that an application for condonation can only be considered if filed together with a reinstatement application
  • MJRM Transport Services CC v CCMA and Others (2017) 38 ILJ 414 (LC), wherein it was held that the mere non-compliance with clause 11.2.3 alone does not entitle the other party to demand the dismissal of the review, without bringing a dismissal application in terms of rule 11 – the above approach is confirmed in Mthembu v CCMA and Others (2020) 41 ILJ 1168 (LC) and Moisi v CCMA and Others (JR2567/16) (2019) ZALCJHB 354 (17 December 2019) – this approach is also in line with Macsteel Trading Wadeville (supra), indicating the need to bring a rule 11 application with reference to the non-compliance with clause 11.2.7
  • a summary of the labour court judgments that exist, as indicated above, reflects that different approaches exist, namely, simply applying for condonation or, alternatively, bringing a separate application to revive the review application (seeing that there is no pending review) – however, most judgments favour the approach that a reinstatement application has to be brought together with a condonation application and that was also the approach followed by the labour court in casu
  • obiter, the labour court expressed the viewpoint that, as long as a review application is no longer pending (in terms of one of the deeming provisions of the practice manual), nothing prevents a respondent party from taking steps to enforce an award, even if security was provided in terms of section 145(7) of the LRA, seeing that the security only stays execution of an application that is pending
  • finally, the labour court indicated that the test, to decide whether or not to exercise a discretion to reinstate a review or order its retrieval from the archives or deciding to condone non-compliance with time periods stated in the manual, entails that the labour court is to apply the traditional test used in condonation applications, except that the prospects of success need only be assessed on the basis as to whether a case was made out which could succeed if proven

Often employment contracts contain a clause to the effect that the agreement is the sole record of the terms existing between the parties and that any variation or amendment thereof will only be valid if reduced to writing and signed by both parties.

When appearing in the labour court in motion proceedings and there are material disputes of fact, should the matter be referred for oral evidence?

Motion proceedings (including applications in terms of rule 31 of the CCMA rules) are not designed to resolve disputes of fact, but indeed disputes of law.