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Darcy du Toit’s Weekly Comment in IR Network published by LexisNexis [subscription required] Once withdrawn, can a case be reinstated?
“The application for joinder was therefore also refused because there was no application before the court to which Ellies could be joined.
With respect, the position may be less clear-cut. In Ralo v Transnet Port Terminals and others [note: see also MJRM Transport Services CC v CCMA</a>] the Labour Court was faced with a review application where the record had been filed late and which, in terms of the Labour Court Practice Manual, was therefore deemed (as in Ellies Electronics) to have been “withdrawn”. The “proper order”, Van Niekerk J accordingly found, was to strike it from the roll.
But, he continued,
“[t]here 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” (para 11).
The difference with Ellies Electronics was that, in the latter case, the matter had already been withdrawn previously and thus did not need to be struck from the roll (and, if the record has already been filed, there would be no need to apply for condonation). But there is no obvious reason why the time of withdrawal should determine whether the case remains “pending” or the procedure to be followed in bringing it back before court.
The reasons given by the court in Ellies Electronics for refusing reinstatement do not seem compelling.
First, the court referred to the absence of any regulatory provision for such a procedure; Van Niekerk J, on the other hand, referred to the absence of any regulatory obstacle. Secondly, Lekale AJ rightly attached importance to “the need for finality in legal disputes and expeditious resolution of labour disputes” (para 17). However, it would seem that relaunching the claim all over again would postpone a final resolution even longer.
The bottom line is that withdrawal of a dispute, as with absolution from the instance, means that the merits of the dispute have not yet been heard. This was apparently what Ellies had in mind, implying that it would be expeditious to deal with the merits on the basis of the papers that had already been filed. This, in contrast to instituting fresh proceedings and seeking condonation for (very) late referral, would be the effect of granting reinstatement, as suggested in Ralo v Transnet.”