Ralo v Transnet Port Terminals (P136/2014) [2015] ZALCPE 69; [2015] 12 BLLR 1239 (LC); (2015) 36 ILJ 2653 (LC) (15 June 2015) per Van Niekerk J.

The Labour Court struck the review application from the roll and held that the Practice Manual prescribed binding time limits and that they were not guidelines.  As the record of the proceedings was filed out of time the application had to be struck off the roll.  The word ‘deemed’ in the Manual meant that the review application was in fact withdrawn.  Nothing prevented the applicant from reinstating the review application provided he applied for condonation for the late filing of the record.

Excerpts

[10]      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the word “deemed” is such that the dispute between the parties remains unresolved and that the application has not been withdrawn, the meaning of “deemed” in a context similar to the present has been the subject of an instructive judgment by the Labour Court of Namibia.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 (SE), at 698, where the court referred with approval to Steel v Shanta Construction (Pty) Ltd and others 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The plain and unambiguous wording of the practice manual is to the effect that the applicant must be regarded as having withdrawn the review application.

[11]      To the extent that the applicant contends that he will suffer prejudice on account of any application of paragraph 11.2.3 of the practice manual and that he will be deprived of his right to access to court and to have his application fully ventilated, this is simply not so. The proper order, it seems to me, in circumstances such as the present, is to strike the review application from the roll. There is no bar, either in the rules of this Court or the practice manual to the applicant filing an application in which he seeks to have the review application reinstated, together with an application in which condonation for the late filing of the record is sought.