Numsa obo Charles v DSV Solutions (Pty) Ltd

In dealing with the issue of combining preliminary applications the labour court [per PN Kroon AJ] decided that “condonation applications should not generally be heard separately from review applications and furthermore the setting down of a condonation application before pleadings have closed in a review application and in particular before the record has been filed in the review application would, in any event, be premature.”

Essence

Combining preliminary applications makes more sense because piecemeal litigation should be avoided at all costs.

Decision

(PR118/20) [2021] ZALCPE 11 (22 October 2021)

Order:

1. The application for condonation for the late lodging of the review application is postponed sine die.

2. The application for condonation for the late lodging of the review application is to be heard together with the review application.

3. Each party shall bear its own costs in respect of the wasted costs occasioned by the postponement of the matter on 6 July 2021.

Judges

P N Kroon AJ

Heard:       6 July 2021
Delivered: 22 October 2021

Related books

Darcy du Toit et al Labour Relations Law: A Comprehensive Guide 6ed 925 pages (LexisNexis 2015) at

Darcy du Toit et al Labour Law Through The Cases – loose-leaf service updated 6 monthly (LexisNexis 2021) LC Rule 7

Van Niekerk and Smit (Managing editors) et al [email protected] 5ed (LexisNexis 2019) at

Myburgh and Bosch Reviews in the Labour Courts 1ed (LexisNexis 2016) at

Garbers The New Essential Labour Law Handbook 7th ed (MACE 2019) at

Reasons

“[22] The reason for not hearing a condonation application separately becomes all the more compelling where, as in this case, a record is not yet available. Indeed, as mentioned above, even the arbitration award which is impugned is not in the court file.

[23] The second reason as to why it would generally be undesirable to entertain a condonation application separately from the review application is procedural and it is that the hearing of condonation and review application separately would be tantamount to encouraging or at least endorsing piecemeal litigation. The legislature has made it clear that conducting litigation on a piecemeal fashion would not usually promote the objects of the LRA . In this context I note that whilst the Practice Manual makes provision for condonation applications when it comes to trial proceedings to be heard separately , there is no similar provision when it comes to the hearing of condonation and review applications separately.”

Quotations from judgment

Note: Footnotes omitted and emphasis added

Introduction

[1] I have before me an opposed application for condonation for the late lodging of a review application brought in terms of Section 145(1A) of the Labour Relations Act No. 66 of 1995 (the LRA). It has been set down separately from the review application pursuant to a directive.

[2] I mero motu raised with the parties as to whether it would be appropriate for me to consider the application for condonation in the absence of the review application . After constructive engagement with the respective legal representatives, I gained the impression that both Mr Voultsos, who appeared on behalf of the Applicant (NUMSA), as well as Mr Ledden, who appeared on behalf of the First Respondent (DSV), agreed with, or at least did not strongly object to, the preliminary view which I expressed, namely that the setting down of the condonation application separately and before the review application was ripe for hearing was premature.

[3] In this context Mr Ledden indicated that, although he acknowledged that it would be problematic to hear the condonation application separately, his client was concerned about the delays which had accompanied the prosecution of the review application. Whilst I can understand the frustration expressed by Mr Ledden at the apparent lack of progress made in the prosecution of the review application, it suffices to record that if a respondent is of the view that there have been unreasonable delays in the prosecution of the review application then it has its remedies which it may pursue, if so advised.

If however the condonation application has indeed been prematurely set down the proper administration of justice will not be served in the Court entertaining that application solely because of delays accompanying the prosecution of the review application.

The factual matrix

[4] An arbitration award was issued on 19 February 2020 in terms of which the Second Respondent (the Arbitrator) determined an unfair dismissal dispute. On 8 September 2020 NUMSA brought a review application challenging the award which application, it was conceded, was substantially out of time. Although reference was made to the arbitration award in the founding affidavit deposed to in support of the review application, it was not attached to it. No copy of the award was to be found in the court file.

[5] The review application cited DSV as well as the Arbitrator. The applicable Bargaining Council, namely the National Bargaining Council for the Road Freight Industry (the Bargaining Council), was not however cited as is customarily done in such applications. On the face of it, the notice of motion was irregular in that, in contradictory fashion, it required an answering affidavit to be delivered prior to the filing of the record and did not make any provision for the delivery of a rule 7A(8) notice.

When it comes to review applications a party must comply with the provisions of rule 7A or, if it elects to do so, bring the review application in terms of rule 7 and comply with the provisions of that rule. It is not however permissible to conflate the two rules. Lastly I note that the time periods applicable to High Court applications appear also to have been invoked.

[6] Mr Ledden indicated that DSV has taken the stance that it was not of the mind to have the review application set aside as an irregular step but that it would rather deal with any perceived defects in the application in its answering affidavit.

[7] As to the status of the prosecution of the review application, by the time the matter was heard no record had as of yet been furnished to the office of the Registrar for upliftment by NUMSA. This is perhaps not surprising given the circumstance that the custodian of the record, the Bargaining Council, was not cited in the application.

[8] In response to enquiries from the bench as to the further conduct of the review application, Mr Voultsos explained that the attorneys of record had only recently been instructed and that he too had only recently been briefed, the heads of argument having been drawn by Counsel who had previously been engaged.

Mr Voultsos did however acknowledge that NUMSA may well have to take some procedural steps in order to ensure that the application is properly prosecuted. It is not however for this Court, at this stage, to dwell on the potential challenges facing the prosecution of the review application as these may fall to be adjudicated at a later stage.

[9] Turning to the question of condonation, the review application was accompanied by a self-standing affidavit which addressed the issue of condonation and set out the grounds upon which condonation was sought.

There was however no prayer in the notice of motion for condonation. This omission, as with the issues referred to in paragraph 5 above, may be attributable to the circumstance that the notice of motion was not drafted by legal practitioners but rather by an official from NUMSA.

What is the nature of an application for condonation for the late lodging of a review application?

[10] In deciding as to whether it is appropriate to consider condonation applications of this nature separately, perhaps a starting point is to say something about what type of application a condonation application for the late lodging of a review application is and in particular as to whether it is to be considered an interlocutory application envisaged by rule 11 or an application to be brought in terms of rule 7. In this context Mr Voultsos submitted that the condonation application was part and parcel of the review application whilst Mr Ledden submitted that the condonation application should be regarded as a self-standing application.

[11] The Labour Court authorities are not harmonious on this question. Appeal Court authorities which suggest that such an application for condonation is not an interlocutory application include:

11.1. Booysen Bore Drilling (Pty) Ltd v National Union of Mineworkers & others which concerned a condonation application for the late delivery of a statement of case. In the judgment penned by Zondo JP (as he then was), the [Labour Appeal] Court held [on 15 March 2011] that a condonation application should be brought in terms of rule 7 .

11.2. Asla Construction (Pty) Ltd v Buffalo City Metropolitan Municipality where the [Supreme] Court [of Appeal per Swain JA in 2017], in addressing the late launching of an application in terms of the Promotion of Administrative Justice Act (PAJA), held that an application for the extension of the time period once instituted could be consolidated with the main application thus, by implication, holding that such an application is not interlocutory in its nature .

[12] Appeal Court authorities which support the view that such an application is interlocutory include the following:

12.1. Fundaro v McLachlan & Lazar (Pty) Ltd t/a M&L Inspection Services which concerned an application for condonation for the late delivery of a statement of case in terms of the erstwhile Labour Relations Act No. 28 of 1956 (the repealed LRA). The [Labour Appeal] Court [per KR McCall AJA on 10 October 1995], without much examination, considered it to be an interlocutory application .

12.2. SACCA (Pty) Ltd v Thipe and Another which also dealt with an application for condonation the late delivery of a statement of case in terms of the repealed LRA and the [Labour Appeal] Court, again without much analysis, accepted that such an application was an interlocutory application.

[13] I could not however locate a Labour Appeal Court authority which dealt directly with the point as to whether an application for condonation for the late lodging of a review application falls to be brought in terms of rule 7 or rule 11.

[14] In my view, there is much to be said for the view that it would be appropriate for rule 7 to be utilized (and not appropriate for rule 11 to be invoked) given the nature of the application. I say this because an interlocutory application self-evidently presupposes pending proceedings but, at a conceptual level, until a condonation application for the late institution of a review application is brought, it cannot be said that there are pending proceedings or that there is a lis before the Court.

This is because non-compliance with this type of statutory time period goes to the jurisdiction of the Court.

The position was explained [1 July 2003 by D Pillay J in the labour court] as follows in Cross Border Road Transport Agency v Mpato and Others :

“The result is that the jurisdictional prerequisites for the review are non-existent in that there is no application for condonation, nor has there been service of the review. Accordingly, there is no review application that complies with the rules of this court. In the circumstances, there is no process pending which warrants the granting of [the order to stay execution on the arbitration award].” (my emphasis)

[15] By way of analogy the Practice Manual for the Labour Court of South Africa (the Practice Manual) contemplates, at paragraph 11.2.3, that applications for the reinstatement of a review application deemed to have been withdrawn are to be brought in terms of rule 7.

I can only assume that the reason for this is that until a reinstatement application is brought there are in truth no proceedings before the court .

[16] That all being said, in the light of the conclusion to which I ultimately come, it is not necessary for me to express a definitive view on this issue. This is because whether such an application is interlocutory in nature or whether it is an application to be brought in terms of rule 7 does not answer the question as to whether it would be an acceptable practice to hear a condonation application separately from the review application.

As appears from Asla, even if the application is a rule 7 application the question still arises as to whether it should, in the ordinary course, be consolidated with the review application.

Should the application for condonation be heard separately from the review application?

[17] The primary question which remains is as to whether a condonation application for the late lodging of the review application should be entertained, as it were, in vacuo and in the absence of the main application. Having carefully considered the implications attendant upon the hearing of a condonation application separately from the review application, I have come to the conclusion that it would not generally be appropriate for a condonation application to be heard separately from the review application. I come to this conclusion for two reasons, one substantive and one procedural.

[18] At a substantive level, the success or otherwise of a condonation application accompanying a review application is, save in exceptional circumstances, invariably bound up with the prospects of success in the main application. It is trite that good prospects of success in the review application may compensate for an unsatisfactory explanation for a delay and thus salvage the condonation application and that there is no point in granting condonation if there are no prospects of success .

[19] The Constitutional Court has made it clear in Buffalo City that a condonation application cannot be divorced from the main application.

[20] The natural question which then arises is, if a Court evaluating a condonation application does not, as in this case, have access to the record of the evidence placed before the Arbitrator, how would it then be in a position to properly apply its mind to the question of the prospects of success? It would be akin to an Appeal Court considering an application for the late lodging of an appeal as it were, in the dark, without the appeal record.

[21] In the heads of argument submitted on behalf of NUMSA, reliance was placed on cases which dealt with applications for condonation in respect of the late delivery of a statements of claim. In my view these cases are to be distinguished and are not apposite when dealing with condonation in application proceedings.

In action proceedings one does not know what the evidence will be whilst in application proceedings, because the affidavits contain both the pleadings and the evidence , the Court would be aware of what the evidence is.

It follows that, when it comes to applications, a court will be in a position to express itself more confidently when it comes to the question of prospects of success than would be the case in action proceedings where, because the Court is yet to hear the evidence, it is often simply not possible to determine with any degree of certainty as to whether an applicant indeed enjoys prospects of success .

[22] The reason for not hearing a condonation application separately becomes all the more compelling where, as in this case, a record is not yet available. Indeed, as mentioned above, even the arbitration award which is impugned is not in the court file.

[23] The second reason as to why it would generally be undesirable to entertain a condonation application separately from the review application is procedural and it is that the hearing of condonation and review application separately would be tantamount to encouraging or at least endorsing piecemeal litigation.

The legislature has made it clear that conducting litigation on a piecemeal fashion would not usually promote the objects of the LRA . In this context I note that whilst the Practice Manual makes provision for condonation applications when it comes to trial proceedings to be heard separately , there is no similar provision when it comes to the hearing of condonation and review applications separately.

[24] The frustrating consequences of piecemeal litigation are many. I provide some illustrations below.

[25] If the condonation application is heard separately it may result in two hearings where one hearing would have sufficed. There may be a situation where, for example, condonation is granted in one hearing but the review application (which is set down separately) ultimately fails pursuant to a second hearing.

[26] To illustrate the point further, reference may be made to the trilogy of [labour court] judgments in South African Municipal Workers Union obo Nomava Mlalandle v Nelson Mandela Metropolitan Municipality

  • as heard on 27 October 2016 and handed down on 2 November 2016 by Tlhothalemaje J ,
  • as heard on 25 May 2017 and handed down on 23 March 2018 by Lallie J and
  • as heard on 15 January 2018 and handed down on 16 August 2018 by Van Niekerk J .

[27]

  • In the first judgment the Court pronounced that the review application had been deemed to have been withdrawn and that it was necessary for a substantive application for reinstatement to be brought. The application for reinstatement was then set down separately from the review application.
  • In the second judgment the Court granted an order reinstating the review application.
  • In the third judgment the Court held that the review application was frivolous and should never have been brought in the first place.

The point is of course that if the application for reinstatement and the review application had been heard together then this would have avoided the holding of two separate hearings.

Although these judgments concerned the perils of setting down an application for reinstatement and a review application separately, in my view the same may be said when it comes to setting down condonation applications separately from review applications.

[28] There is also the circumstance that a judgment given in a condonation application will be appealable. The authorities indicate that it is not only the refusal, but also the granting, of a condonation application which is appealable.

The Labour Appeal Court has on three occasions held that the granting of a condonation application is a decision which can be appealed.

In Thipe the [Labour Appeal] Court [per Mogoeng AJA on 12 August 1999] reasoned as follows:

“Firstly, the order ‘condoning’ the failure of the respondents to file the statement of case in time is for the purpose of the main proceedings, dead and buried. No evidence would be led which could have a direct or indirect bearing on that order, no opportunity exists for argument to be presented on it, and it is therefore final in effect and not susceptible to alteration by the Industrial Court.

Secondly, if the decision sought to be corrected was decided in favour of the appellant, thereby refusing ‘condonation’, that order would certainly have been definitive of the rights of the parties. That is precisely what the effect of the order of this court would be should the appeal be upheld.

Thirdly, had ‘condonation’ been refused or should this appeal succeed, such an order would necessarily lead to a more expeditious and cost-effective final determination of the entire dispute between the parties. The appellant would get the same relief as in the main proceedings, namely the dismissal of the application.

Accordingly, the granting of ‘condonation’ in this matter was the question at issue which was open to be decided in the ordinary course of the main proceedings. That order practically put an end to the issue in question immediately it was made and it did not leave the issue open until final judgment.

I am therefore satisfied that an order granting ‘condonation’ of the late filing of a statement of case is in nature and effect an appealable interlocutory order. …”

[29] I am aware that the above decisions concern condonation applications in respect of late statements of case and that different considerations may apply when dealing with a condonation application brought in respect of the late delivery of an application.

It may well be that, in respect of a decision granting condonation (in application proceedings), a court may find that it would not be in the interests of justice to permit an appeal at that stage and without first hearing the review application. Each case would have to be adjudged according to its own facts.

[30] The Court would however not be vested with a discretion to refuse to entertain an application for leave to appeal where condonation has been refused. If an application for condonation is refused then the implications of having heard it separately may be far-reaching.

In practice what could happen is that an application for condonation could be refused and then that decision, by the Labour Court, could then be overturned on appeal only for the matter to be remitted to the Labour Court for the review application to be heard several years later (or worse still for the Labour Court to rehear the condonation application).

Such outcomes would be irreconcilable with the sentiments expressed in the Practice Manual to the effect that review applications are, by their nature, urgent .

[31] Furthermore, assuming, as in this case, the condonation application had been heard and initially refused prior to the close of pleadings, if it was subsequently overturned on appeal this would have the result that, in the interim, the review application would lapse not because the applicant had not prosecuted it timeously but rather because prosecuting the review application would have been an exercise in futility until the decision of the Labour Appeal Court overturning the decision of the Labour Court to refuse condonation.

[32] Finally, I observe that if the condonation application was to be heard separately and condonation was to be refused and the applicant elected not to seek leave to appeal that judgment, following this approach would still have undesirable consequences for at least two reasons:

32.1. Firstly, there would be the unsatisfactory situation where no order is made in respect of the review application because it is not before the Court when it hears the condonation application. The order would thus be confined to the condonation application . The dismissal of an application for condonation would obviously mean that the main review application could not proceed but it would seem then that if a party was of the mind to recover its costs in respect of the review application further litigation would have to be instituted which in turn would mean that a Court, through the vehicle of a second hearing, would presumably have to conduct some type of assessment of the issues raised in and merits of the review application when considering an application for costs in respect of that application, it being trite that the question of costs cannot be considered in isolation or in a vacuum . One would thus have the situation of one judge considering the question of costs in respect of the condonation application and another judge considering the question of costs in respect of the merits of the review application.

32.2. Secondly, there is the circumstance that if the condonation application is heard separately from the review application and the pleadings have not yet closed in the review application then the parties are placed in the invidious position of, until judgment is handed down, having to continue to file papers and conduct litigation (whilst awaiting the judgment in the condonation application) in respect of a review application which may or may not be rendered academic depending on the outcome of the condonation application .

[33] In summary then in my view condonation applications should not generally be heard separately from review applications and furthermore the setting down of a condonation application before pleadings have closed in a review application and in particular before the record has been filed in the review application would, in any event, be premature.

Costs

[34] Mr Voultsos submitted that the costs should be reserved whilst Mr Ledden submitted that the costs should be costs in the cause.

[35] In my view the submission made by Mr Voultsos can be dealt with more easily than that made by Mr Ledden. It is difficult for me to see how it can be said that the Court which ultimately hears the application will be in a better position than this Court to ascertain the facts and to decide which party should be liable for the costs of the postponement . We know the reason for the postponement. It is because the Court has mero motu raised the circumstance that the condonation application has been set down prematurely by the Registrar. It is what may be called a no fault postponement.

[36] As has often been said, the Court has a wide discretion when it comes to making an order as to costs. Where neither party is at fault when it comes to a postponement, there seem to be two schools of thought:

36.1. The wasted costs are regarded as part of the overall expense to which the successful party was put in either prosecuting or defending the applicable legal proceedings. In the result such costs should be costs in the cause.

36.2. The liability for such wasted costs should not be determined solely from the viewpoint of the successful party and equitable considerations should also come into play so that an order is issued which is fair to both parties .

[37] Leaving aside the fact that the weight of authority appears to favour the latter approach, which in my respectful view is a more enlightened approach, it seems to me that the latter approach resonates more with the imperatives enshrined in section 162 of the LRA and it is to be preferred. At the end of the day, the Court must consider all the relevant facts and circumstances and there can be no rigid formula when it comes to exercising its discretion in terms of the requirements of law and fairness. Having considered the matter and in particular the circumstance that the postponement was occasioned through no fault of either party, in my view justice requires that each party pay its own costs.

Order:

1. The application for condonation for the late lodging of the review application is postponed sine die.

2. The application for condonation for the late lodging of the review application is to be heard together with the review application.

3. Each party shall bear its own costs in respect of the wasted costs occasioned by the postponement of the matter on 6 July 2021.

Court summary

Summary

 

Media summary

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