Practice Manual para 11: Relating to condonation

3 Comments

1. 

   GilesFiles on October 14, 2016 at 5:13 pm

   Excerpts from Darcy du Toit’s latest Weekly Comment in IR Network published by LexisNexis [subscription required]

   Applying the Practice Manual of the Labour Court

   The Labour Court Practice Manual represents a praiseworthy effort to bring greater clarity to areas of practice where, in today’s fast-moving world, standards may have become blurred. Nowhere is this more important than in the quagmire of review applications with its interminable delays, where the Manual lays down new time limits. But how binding are these, and what happens if they are breached?
   . . . . .
   However, the Manual also states that it is “not a substitute for the Rules” but is “concerned mainly with how the Rules of Court are applied” (clause 1.2). It emphasises that “no judge is bound by practice directives; this manual is not intended to limit judicial discretion” (clause 2.2). Does this mean that clause 11.2.3 is merely a guideline?

   In Tadyn Trading CC t/a Tadyn Consulting Services v Steiner and others [2014] 5 BLLR 516 (LC) Molahlehi J found that it was not. The Practice Manual, it was held, should be followed (obviously, subject to the Rules or the LRA itself). However, the court also found that it is implicit that condonation for late filing can be applied for.

   In Ralo v Transnet Port Terminals and others [2015] 12 BLLR 1239 (LC), where a portion of the record had been filed a month late, the applicant did not seek condonation on the basis that, contrary to Tadyn, the Manual is merely a guideline. Van Niekerk J disagreed and confirmed that it is binding.
   . . . . . .
   Tlhotlhalemaje J then proceeded to deal with the application for condonation that was before the court (though terming it an application for “extension”, as in clause 11.2.3). In doing so, it was held, the court remains “obliged to take account of the ordinary principles related to applications for condonation” (para 22) and on this basis granted the order that was sought.

   Leaving aside the question of terminology, this approach has to be correct. The Practice Manual cannot override the power of the Labour Court to grant condonation of late filing of any document in terms of section 158(1)(f) of the LRA nor its power to hear interlocutory applications in terms of Rule 11. Had an application for condonation of non-compliance with clause 11.2.2 (the time limit) and 11.2.3 (seeking extension) been made in Ralo, it can be surmised that it would have been considered.

   What the judgment in MJRM Transport Services adds is that, for purposes of clause 11, an application for extension to the Judge-President in chambers can be equated with an application for condonation, and vice versa, at least as far as the substantive law is concerned.

2. 

   GilesFiles on December 7, 2016 at 5:22 pm

   Beware the Practice Manual clause 11.2 and Rule 7A

   Review application struck off the roll. Clause 11.2.3 of the Practice Manual provides that an applicant who fails to file the record of proceedings within 60 days will be deemed to have withdrawn the application, unless a request for an extension has been granted. If an extension is not granted the application remains withdrawn until the applicant files the necessary papers seeking the Judge President to grant such extension.

   Samwu obo Mlalandle v SALGBC (PR115/15) [2016] ZALCPE 24; [2017] 1 BLLR ? (LC) (2 November 2016) per Tlhotlhalemaje J.

3. 

   GilesFiles on January 10, 2017 at 11:08 am

   Melane – flexible discretion for condonation

   In 1962 the then highest court wrestled with when to condone court applications that were filed late or did not comply with the rules. One of giants of the court, Holmes JA, formulated an approach in his own inimitable way. It has been consistently adopted and followed. He decided that formulating a rule of thumb would only serve to harden the arteries. In the absence of any prospects of success there would be no point in granting condonation. A flexible discretion is required in deciding whether sufficient cause has been shown. The discretion must be exercised judicially after an objective overview and consideration of all the facts. There must be fairness to both sides. A piecemeal approach is incompatible with a true discretion. Ordinarily facts are not individually decisive and the following interrelated facts are relevant:

   • degree of lateness,
   • explanation therefor,
   • prospects of success, and
   • importance of the case.

   Melane v Santam Insurance Company Ltd [1962] 4 All SA 442; 1962 (4) SA 531 (AD) per Holmes JA (Hoexter JA, Beyers JA, Ogilvie Thompson JA and Botha JA concurring) [Note: An in forma pauperis appeal with Adv S Kentridge appearing for the appellant].