In a notable and relatively recent ruling,1 the Labour Court dismissed a party's application to revive a lapsed review application, attributing the decision to the (applicant) litigant party's unaccounted delays and procedural missteps.
The outcome serves as a stern reminder of the significance of adhering to prescribed timelines and justifying delays in Labour Court proceedings.
Background
Dissatisfied with an unfavourable arbitration award issued on 13 August 2019, the applicant launched a review application on 15 August 2019 to challenge the arbitration award of the Commission for Conciliation, Mediation and Arbitration ("CCMA"). On 18 October 2019, the applicant was informed that the record of the proceedings to be reviewed was available to be uplifted. According to the Labour Court's Practice Manual ("Manual"), the applicant had 60 days2 to serve and file the record, failing which the review would be deemed withdrawn.
However, the applicant only served and filed an incomplete record on 2 October 2020, well beyond the prescribed 60-day period. Additionally, the Manual prescribes that all documents, excluding heads of argument, be served and filed within 12 months of launching the review application, in this case, by 15 August 2020. Failure to meet this deadline results in the review application being archived, which, as stated above, has the effect of it being deemed withdrawn.
Despite being alerted to the archiving of the review application in an answering affidavit filed by the first respondent on 30 November 2020, the applicant only launched the current reinstatement application on 8 July 2022.
The applicant provided no explanation for the nearly two-year delay in launching the application.
The Labour Court's Evaluation
As a point of departure, the Labour Court emphasised that it lacks jurisdiction to entertain a review application deemed withdrawn and/or lapsed. To regain (or hold jurisdiction), an application to reinstate the lapsed review must be properly filed and set out a reasonable explanation in regard to the delay and to the satisfaction of the Labour Court. Such an application effectively seeks condonation for non-compliance with particular timeframes contained in the Labour Court's Manual, and accordingly, required the applicant to provide a detailed explanation for the applicable period of the delay.
The Labour Court examined the applicant's conduct and the reasons provided for the delay in launching the application for reinstatement. The applicant was required to explain each timeline of the delay in seeking condonation for non-compliance with the Labour Court's Practice Manual's requirements. The Court reiterated that condonation is not granted automatically, rather, it is a discretionary indulgence based on a sufficient explanation of the delay.
In the founding affidavit, the applicant failed to acknowledge that the review application had been deemed withdrawn after August 2020 or that it had lapsed after 15 August 2020. Moreover, there was no information provided regarding why it took the applicant almost two years to launch the reinstatement application after being alerted to the archiving of the review application by the first respondent on 30 November 2020.
Furthermore, the applicant failed to account for significant periods of inactivity during the process. For instance, the applicant did not explain what happened between 18 December 2019 and 23 January 2020, 23 January 2020 and 19 February 2020, or 18 March 2020 and 2 September 2020. Therefore, for a considerable period of over seven months, the applicant provided no plausible explanation for the delay. The Court concluded that the applicant "laid supinely" during these unexplained periods, showing a lack of diligence in pursuing its case.
The Court also highlighted that, instead of seeking the necessary condonation after the need arose in August 2020, the applicant busied itself with regularizing the record, which was futile as there was no longer a review application in place. This conduct was described as "flogging a dead horse" or "fishing behind the net".
Additionally, the Court found that even if the applicant genuinely believed it was still pursuing a viable review application, once the first respondent alerted them to the lapse on 30 November 2020, the applicant should have immediately approached the Court for an indulgence. The failure to do so and the lack of an explanation for the delay weighed heavily against the applicant's application for reinstatement.
Lastly, the Court considered the merits of the applicant's review application and determined that it lacked prospects of success. The court held that the arbitration award was based on a thorough evaluation of the evidence, and the Commissioner's findings were justified. The applicant's case relied on assumptions rather than facts.
The Outcome
In light of these factors, the Labour Court concluded, among other aspects, that granting reinstatement of the review application would not serve the interests of justice.
The Labour Court, as a result, dismissed the applicant's application to reinstate the deemed withdrawn and lapsed review application, ordering the applicant to pay the costs associated with the reinstatement application. The arbitration award issued by the CCMA was made an order of the court pursuant to section 158(1)(c) of the Labour Relations Act.
Conclusion: A Cautionary Tale
In conclusion, this case follows a series of cases in both the Labour Court and Labour Appeal Court ('LAC'), including the LAC case ofE-Tradex (Pty) Ltd t/a Global Trade Solution v Finch3 in which the LAC held that a case that is archived".acquires a peculiar status which requires the delinquent party to justify why it should be reinstated and thereafter be entertained by a court in the wake of a lack of expeditious prosecution."
Consequently, these cases serve as a cautionary tale for applicant parties (i.e. that initiate a matter) in Labour Court proceedings. Thus, applicant parties are cautioned on the importance of adhering to prescribed rules and timeframes to avoid the risk of having their applications or referrals deemed withdrawn or lapsed. This, in essence, being the 'be all, end all' of the matter due to the non-compliance with the Labour Court's Manual.
This bulletin is authored by partner Venolan Naidoo and candidate attorney Caleb Mapatha.
Footnotes
1.Stilhoek Boerderey (Pty) Ltd v Botha and Others(JR 1785/19) [2023] ZALCJHB 34 (1 March 2023).
2."Day" means a day other than a Saturday, Sunday or public holiday, and the number of days must be calculated by excluding the first day and including the last day.
3.E Tradex (PTY) Ltd t/a Global Trade Solution v Finch(2022) 43 ILJ 2727 (LAC) (27 September 2022) par 11. Note, a Fasken team from the Labour & Employment Practice Group, namely Ludwig Frahm-Arp and Venolan Naidoo successfully represented E Tradex (PTY) Ltd in this matter.
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