ALERT EMPLOYMENT LAW - Cliffe Dekker Hofmeyr
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21 JUNE 2021
EMPLOYMENT LAW
ALERT
An employer’s recourse to lockout
and appoint replacement labour
Airline Pilots Association of South Africa
(ALPA-SA), as represented by the South African
Airways Pilots Association (SAAPA), a branch of
ALPA-SA obo Members v South African Airways
(SOC) Limited and Others (J398/21) [2021]
ZALCJHB 57.
KENYA
Should employers offer employees
incentives to get vaccinated?
IN THIS ISSUE > As the second round of COVID-19 vaccinations
kicks off this month, the Kenyan government
aims to vaccinate at least 60% of the population
Beware who disciplines and by June 2022.
dismisses a deemed employee
Many employers are all too aware of the
potential pitfalls associated with engaging What is a Rule 11 application in
deemed employees, i.e. employees who earn terms of the Labour Court rules?
less than the annual earnings threshold set by
the Minister of Employment and Labour from Rule 11 of the Rules for the Conduct of
time to time, which is currently R211,596.30 Proceedings in the Labour Court (the Labour
and who, in terms of section 198A(3)(b) of the Court Rules) is commonly referred to as
Labour Relations Act, 1995 (LRA), are deemed the “catch all” rule in view of the fact that it
to be employees of the client for purposes of enables litigants in the Labour Court to bring
the LRA, and not employees of the temporary an application for anything that is not expressly
employment service (TES). provided for in the Labour Court Rules.
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EMPLOYMENT LAW
Beware who disciplines and dismisses
a deemed employee
Many employers are all too aware The TES had issued the employee with
of the potential pitfalls associated notice to attend a disciplinary enquiry
One of the grounds on with engaging deemed employees, and notice of his dismissal. The TES and
i.e. employees who earn less than the SF argued that the TES was providing
which the employee
annual earnings threshold set by the these services in terms of its service
challenged the fairness Minister of Employment and Labour level agreement with SF and that it was
of his dismissal was that from time to time, which is currently permitted to take this action given the
he had been disciplined R211,596.30 and who, in terms of triangular relationship between the parties
section 198A(3)(b) of the Labour - the TES, SF and the employee.
and dismissed by the TES, Relations Act, 1995 (LRA), are deemed to
arguing that the TES was be employees of the client for purposes
The commissioner considered the decision
of the Constitutional Court in Assign
not his employer and as a of the LRA, and not employees of the
Services (Pty) Limited v National Union
result, had no authority to temporary employment service (TES).
of Metalworkers of South Africa & Others
discipline and dismiss him. One of these potential pitfalls was the 2018 (6) SA 232 (CC) and its interpretation
focus of a recent CCMA award in SA of section 198A(3)(b). In particular, he
Commercial Catering & Allied Workers referred to and relied on the Constitutional
Union obo Noda and Sovereign Foods Court’s finding that when the deeming
& Another (2021) 42 ILJ 929 (CCMA). provision applies, the client becomes
Sovereign Foods (SF) made use of the the sole employer of the employee for
services of a TES. The TES placed the purposes of the LRA. The commissioner
employee in question at SF’s workplace. found that given the finding in Assign
After a few years the employee was Services and the fact that SF was the sole
disciplined for misconduct and dismissed. employer, the TES had no authority to
The employee referred a dispute to the discipline and dismiss the employee.
CCMA challenging the substantive fairness
The commissioner did not accept the TES
of his dismissal. It was common cause
and SF’s evidence that the disciplinary
in the arbitration proceedings that the
enquiry was conducted by the TES, which
employee was deemed to be an employee
made recommendations to SF and based
of SF for purposes of the LRA. One of
on those recommendations, SF instructed
the grounds on which the employee
the TES to proceed with the sanction of
challenged the fairness of his dismissal was
dismissal. The commissioner was not
that he had been disciplined and dismissed
convinced by this, finding that the TES and
by the TES, arguing that the TES was
SF had not placed any evidence before
not his employer and as a result, had no
him that showed that the TES made a
authority to discipline and dismiss him.
recommendation to SF as to the outcome
and sanction and that SF endorsed
the recommendation.
2 | EMPLOYMENT LAW ALERT 21 June 2021EMPLOYMENT LAW
Beware who disciplines and dismisses
a deemed employee...continued
The commissioner found that the notice found the employee’s dismissal
served on the employee to attend the substantively unfair and order that he be
The commissioner disciplinary enquiry was on the letterhead reinstated with nine months’ backpay.
of the TES, the witness statements
concluded that once indicated that the TES was in control of
This award is an important reminder
the deeming provision is the disciplinary enquiry and the outcome
to clients who engage the services of
deemed employees that if a TES is in any
triggered, the TES is no of the disciplinary enquiry was also
way involved in the disciplining of deemed
longer an employer of the issued on the letterhead of the TES. The
employees that the client must ensure
commissioner reasoned that all of this
placed employee and the was an indication that the TES initiated
that any steps taken by the TES are at
client as the sole employer, and concluded the disciplinary process,
the instance and on behalf of the client,
and that it is the client who must make
is the party who has the without SF having any say in the matter.
the decision to discipline and ultimately,
authority to discipline and The commissioner concluded that once approve or endorse the sanction.
dismiss the employee. the deeming provision is triggered, the
TES is no longer an employer of the Gillian Lumb and Mbulelo Mango
placed employee and the client as the
sole employer, is the party who has
the authority to discipline and dismiss
the employee. In the circumstances,
the commissioner
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3 | EMPLOYMENT LAW ALERT 21 June 2021EMPLOYMENT LAW
An employer’s recourse to lockout
and appoint replacement labour
Airline Pilots Association of South employees. Facilitation was conducted
Africa (ALPA-SA), as represented by the by the CCMA. When the parties could
On 5 December 2019, South African Airways Pilots Association not come to an agreement regarding
(SAAPA), a branch of ALPA-SA obo re-negotiating new terms and conditions
SAA was placed under
Members v South African Airways (SOC) of employment for its employees,
voluntary business rescue. Limited and Others (J398/21) [2021] SAA made various demands including
A rescue plan was adopted ZALCJHB 57. termination of the Regulating Agreement
on 14 July 2020. Pursuant The Applicant, Airline Pilots Association
and any other collective agreements
between the parties. It also tabled revised
to the adoption of the of South Africa (ALPA-SA), as represented
salaries, and terms and conditions of
rescue plan, SAA issued by the South African Airways Pilots
employment. These were rejected.
Association (SAAPA) represents about
a Notice in terms of 89% of the Pilots employed by South
Thereafter, SAA referred a mutual
interest dispute to the CCMA. The parties
section 189(3) of the LRA African Airways (SOC) Limited (SAA). Since
deadlocked. SAA then issued a notice
to all its employees. December 2001, SAA tried to renegotiate
of lockout in terms of section 64(1)(c) of
and/or cancel a long-standing Collective
the LRA. In response, SAAPA sought a
Agreement (Regulating Agreement)
final order from the Labour Court on an
governing the pilots’ terms and conditions
urgent basis declaring the lockout unlawful
of employment. It contended that
and unprotected. The court differed
the agreement is unduly onerous and
and dismissed that application. SAAPA
unsustainable given its financial position.
appealed, however, were unsuccessful.
There was private arbitration held, the
outcome of which was that the Regulating Basis for SAAPA’s interdict
Agreement could not be terminated, even
On 30 March 2021, SAAPA gave notice of
on notice. It could only be rescinded
its intention to embark upon strike action
through a subsequent agreement. This
in response to the lockout. SAA continued
did not deter SAA. In December 2019, it
with the lockout. On April 2021, SAAPA
launched applications in the Labour Court
approached the Labour Court on an
and High Court to declare the agreement
urgent basis seeking an order declaring
unconstitutional. These had not been
that the lockout effected by SAA was not
determined as at the hearing before the
in response to a strike on its part, SAA is
Labour Court.
not permitted to employ replacement
Business rescue and section 189A LRA labourers in place of its members who
process at SAA were engaged in industrial action, and
SAA’s re-employment of pilots whose
On 5 December 2019, SAA was placed
services were previously terminated to
under voluntary business rescue. A
perform the functions of the striking pilots
rescue plan was adopted on 14 July 2020.
constituted a contravention of section 76
Pursuant to the adoption of the rescue
of the LRA.
plan, SAA issued a Notice in terms
of section 189(3) of the LRA to all its
4 | EMPLOYMENT LAW ALERT 21 June 2021EMPLOYMENT LAW
An employer’s recourse to lockout
and appoint replacement labour
...continued
Issue before the Labour Court question, were not initially locked-out,
but had refused to perform those duties.
Essentially, the issue that the Labour Court
Essentially, the issue that was whether SAA’s conduct infringes the
SAA was also not prohibited from doing so
even if it had initially imposed a lockout.
the Labour Court was provisions of section 76(1)(b) of the LRA,
When the SAAPA commenced its strike
whether SAA’s conduct and whether it was appropriate to interdict
action, SAA confirmed the continuation
them from doing so pending the main
infringes the provisions of its lockout in response to that strike.
application on 15 June 2021. Section 76
of section 76(1)(b) of provides that-
This entitled SAA to engage replacement
labour. SAAPA had not satisfied the
the LRA, and whether (1) An employer may not take into requirements of the relief it sought, and
it was appropriate to employment any person- the application was dismissed.
interdict them from (a) to continue or maintain production Employers may be justified in locking
doing so pending the during a protected strike if the whole out employees who refuse to perform
main application on or a part of the employer’s service their duties, even before receipt of a
has been designated a maintenance strike notice. The Labour Court held that
15 June 2021.
service; or this lockout was protected and lawful.
Furthermore, the employer will have the
(b) for the purposes of performing the
right to appoint replacement labour in
work of any employee who is locked
respect of striking employees. After receipt
out, unless the lockout is in response
of SAAPA’s strike notice, SAA did not issue
to a strike.
a new lockout notice. It simply advised the
The court held that SAA was permitted union that the already imposed lockout
to employ replacement labour even if it would continue, and then appointed
had initially instituted a lockout before replacement labour.
the commencement of the strike, on the
ground that the individuals who would Phetheni Nkuna and
ordinarily have performed the work in Mthokozisi Zungu
5 | EMPLOYMENT LAW ALERT 21 June 2021EMPLOYMENT LAW
KENYA
Should employers offer employees
incentives to get vaccinated?
As the second round of COVID-19 Other employees may refuse the
vaccinations kicks off this month, the vaccine for mental health reasons.
The Occupational Safety Kenyan government aims to vaccinate These employees would be disqualified
at least 60% of the population by from enjoying the incentive available
and Health Act imposes an
June 2022. Employers are also keen whether monetary or non-monetary.
obligation on employers to on their employees being vaccinated
2. Certain religions or beliefs held by
maintain the workplace in so that they are safer at the workplace
employees may result in apprehension
a condition that is safe and and to facilitate a full re-opening of the
in receiving the vaccine. Such
economy. Is it permissible though for
without risks to the health employers to offer employees incentives
employees would also be disqualified
of employees. to get vaccinated?
from enjoying the incentives that are
available to others.
The Occupational Safety and Health Act
In the cases of Kenya Legal and Ethical
imposes an obligation on employers to
Network on HIV & AIDS (KELIN) & 3 others
maintain the workplace in a condition
v Cabinet Secretary Ministry of Health
that is safe and without risks to the
& 4 others [2016] eKLR and PAO & 2 others
health of employees. The Directorate
v Attorney General, Aids Law Project
of Occupational Safety and Health
(Interested Party) [2012] eKLR, the courts
Services also provides a non-binding
held that the right to health contains both
recommendation that all workplaces
freedoms and entitlements and that the
should develop infection control plans and
freedoms include the right to control
policies aimed at minimising the spread
one’s health and body and the right to
of COVID-19 in workplaces. For example,
be free from interference. An employer
promotion of hygiene, observing social
should therefore be careful to balance
distance techniques, and promotion of
its obligation to provide a safe workplace
remote working amongst others. While
with the employee’s freedom and right to
there is nothing preventing an employer
control one’s health and the right to be
from encouraging its employees to be
free from interference.
vaccinated, employers should, however, be
careful when issuing blanket vaccination The above cases may however be
policies or incentives to employees since distinguished because they did not deal
such policies and incentives may easily be with a pandemic. It remains to be seen
considered discriminatory. whether a COVID-19 court case that
addresses the question of vaccination
The Constitution and the Employment
especially for industries such as health
Act protects employees from both direct
care which may have a strong case for
and indirect discrimination on the basis of
their employees to be vaccinated for their
their health status, religion, conscience,
own protection.
belief or culture. Vaccination incentives
may be considered discriminatory for the In the meantime, employers may consider
following reasons: collective consultation with employees
or their trade union representatives
1. Vaccination is not suitable for
to develop internal sensitisation plans
everyone. Some of the vaccines are
which may contribute towards voluntary
not suitable for certain individuals
take-up of the vaccine without having to
with suppressed immune systems. An
give incentives.
employee with certain allergies may
also be advised against vaccination.
Desmond Odhiambo and
Peter Mutema
6 | EMPLOYMENT LAW ALERT 21 June 2021EMPLOYMENT LAW
What is a Rule 11 application in terms
of the Labour Court rules?
Rule 11 of the Rules for the Conduct review proceedings on his behalf. The
of Proceedings in the Labour Court National Union of Metalworkers of South
On 19 July 2010, NUMSA (the Labour Court Rules) is commonly Africa (NUMSA) accordingly instituted
referred to as the “catch all” rule in view review proceedings on 22 June 2010.
advised the employer’s
of the fact that it enables litigants in the On 19 July 2010, NUMSA advised the
attorneys of record Labour Court to bring an application for employer’s attorneys of record (Macsteel)
(Macsteel) that it had anything that is not expressly provided that it had uplifted the record and was
uplifted the record and for in the Labour Court Rules. The in the process of having it transcribed.
rule itself provides that interlocutory However, the transcription of the record
was in the process of applications, or any other applications was only completed in May 2011,
having it transcribed. incidental to, or pending proceedings some 10 months after NUMSA had
that are not specifically provided for in uplifted it. When NUMSA subsequently
the rules of the Labour Court should filed an incomplete copy of the record
be brought on notice and supported by 17 months later in December 2012, it failed
affidavits. Over and above this, any other to explain its incompleteness or the delay
applications for directions that may be in filing it. In January 2013, NUMSA filed
sought from the Labour Court are also the full record which was approximately
included in this ambit. 19 months after the record had been
transcribed and NUMSA once again
In light of this, litigants may rely on Rule 11
failed to explain the excessive delay. In
to dismiss a review application, referral
Macsteel’s answering affidavit, the issue of
application or a regular application
NUMSA’s undue delay in filing the record
in the Labour Court for failure to take
was raised in support of its contention
further steps to prosecute a matter within
that the Labour Court dismiss the review
reasonable timeframes provided for in
application. Unsurprisingly in reply, NUMSA
the Practice Manual. This is commonly
failed to provide any explanation or seek
referred to as a Rule 11 application.
condonation for the excessive delay and
Conflicting caselaw denied prosecuting the review with “a high
degree of negligence.” Consequent to
The position regarding Rule 11 applications
NUMSA’s delay, the review application was
to dismiss a matter still remains tremulous
only heard on 24 February 2016, almost
in the sphere of labour law because a
six years after the review application was
number of conflicting judgments exist. We
instituted. Since NUMSA did not explain
set out the position with reference to some
the delay in setting the matter down for
of the most recent caselaw to outline the
hearing, Macsteel sought to persuade
different approaches that the Labour Court
the Labour Court to dismiss the review
has taken in terms of when and how a Rule
application because of the dilatory manner
11 application may be initiated as well as
in which NUMSA had prosecuted it, and
the approach that is most legally sound.
its total failure to explain the delays. The
Macsteel Trading Wadeville v Van der outcome, however, was that the Labour
Merwe NO & others (2019) 40 ILJ Court refused to consider this issue on
798 (LAC) the basis that Macsteel had not brought
an application in terms of Rule 11 of
In this case, the employee (Mr. Chiloane)
the Labour Court Rules to dismiss the
was aggrieved by the outcome of an
review application.
arbitration award and instructed the
trade union representing him to institute
7 | EMPLOYMENT LAW ALERT 21 June 2021EMPLOYMENT LAW
What is a Rule 11 application in terms
of the Labour Court rules?...continued
The Labour Appeal Court appeal, stated with by NUMSA. Furthermore, the Appeal
that while there was nothing specific in the Court stated that even if the Labour Court
This Labour Appeal Court Labour Relations Act (LRA) that provided was not inclined to strike the matter off
for the dismissal of a review application the roll, it ought to have given Macsteel an
emphasises the serious on the ground of undue delay, there were opportunity to bring a Rule 11 application
consequences of delaying certain provisions in the Rules that gave a rather than delving into the merits of the
the prosecution of a reviewing court wide discretion to take any review. Macsteel’s appeal was upheld,
review application. action to achieve the objectives of the LRA, and the order of the Labour Court was set
namely effective and expeditious dispute aside and replaced with an order striking
resolution. This Labour Appeal Court NUMSA’s review application from the roll.
emphasises the serious consequences
Mthembu v Commission for
of delaying the prosecution of a review
Conciliation, Mediation & Arbitration &
application. Litigants must therefore always
others (2020) 41 ILJ 1168 (LC)
ensure that the time periods recorded in
the LRA, the Rules and the Practice Manual The court in Mthembu v Commission for
are complied with because failure to do Conciliation, Mediation & Arbitration &
so could may in a court refusing to hear a others (2020) 41 ILJ 1168 (LC) held that a
review application which potentially had Rule 11 application ought to be granted
good prospects of success in the interests of expeditious resolution
of labour disputes. The court held that a
The Labour Appeal Court held that the
party bringing a Rule 11 application once
review application in this case had been
it has been placed in a position to file an
archived and was regarded as lapsed,
answering affidavit and raise the issue of
where NUMSA filed the review record
non-compliance defeats the concept of
approximately 20 months after instituting
expeditious resolution of disputes. The
the review application and where the
court accordingly held that:
application was set down six years after
being instituted. In such circumstances, “Once a matter is deemed
and in absence of NUMSA seeking withdrawn, and the reviewing
condonation for the delay, the court party does nothing by way of an
a quo had no jurisdiction to determine application to reinstate or to seek
the review application. Further to this, the condonation for non-compliance
Labour Appeal Court held that a Rule 11 with the time frames for the matter
application was not a prerequisite for the to be resurrected, it cannot be
Labour Court to consider whether the expected of the opposing party to
review ought to have been dismissed, or wait endlessly. Instead the court
struck off the roll, on the grounds of undue was of the view that the only way of
delay. In the absence of NUMSA applying putting an end to the matter would
for the reinstatement of the review or be by way of a Rule 11 application
seeking condonation for the undue delay do avoid effectively placing
in filing the record, the Labour Court was the opposing party in a review
obliged to strike the application from the application at the mercy and whim
roll on the grounds of lack of jurisdiction of the reviewing party.”
where the relevant provisions of the
Practice Manual had not been complied
8 | EMPLOYMENT LAW ALERT 21 June 2021EMPLOYMENT LAW
What is a Rule 11 application in terms
of the Labour Court rules?...continued
Thus, the court in Mthembu held that includes situations where the reviewing
there is nothing that prevents the court party has been notified of the opposing
The court in this case from considering and dismissing a party’s intention to oppose the review
review application in the face of a Rule 11 application, and no further steps were
consequently concluded application, even in circumstances where taken either to prosecute or reinstate the
that the fact that the the review application is deemed to have review application after it was deemed
employee’s review been withdrawn, given the wide discretion withdrawn or if the reviewing party is
application was deemed of the Labour Court when interpreting aware of the Rule 11 application and takes
and applying the provisions of the Practice no steps in either opposing the application
to be withdrawn did not Manual. It also held that it’s view is or indicating an intention to pursue the
imply that the employer reinforced by the provisions of Rule 11(4) review application.
was precluded from of the Labour Court Rules, which provides
SG Bulk A division of Supergroup South
that in the exercise of its powers and the
immediately taking steps to Africa (Pty) ltd v Khumalo & another and
performance of its functions, a reviewing
bring it to finality. court may act in a manner that it considers
Nkuna v NBCRFLI and others
expedient in the circumstances to achieve These two judgments were delivered
the objects of the LRA. In other words a together on 13 April 2021 by Honourable
court may grant a Rule 11 application to Judge Moshoana. The former case
dismiss a review application in order to deals with a referral by the ex-employee
resolve a dispute as speedily as possible (Mr. Khumalos) on 20 May 2019 who
without having to wait for the reviewing filed a statement of claim alleging an
party to take further steps to bring the unfair dismissal based on operational
matter to finality or to resurrect the matter requirements from the respondent-
after it has been deemed withdrawn due to employer (SG Bulk). SG Bulk then filed their
non-compliance with timeframes. statement of response on 30 May 2019.
However, no further steps were taken
The court in this case consequently
in terms of the parties holding a pretrial
concluded that the fact that the
conference. A period of one year and
employee’s review application was
four months lapsed until the applicant
deemed to be withdrawn did not imply
launched a Rule 11 application to dismiss
that the employer was precluded from
the referral on the basis of undue delay. In
immediately taking steps to bring it to
the latter judgment Mr. Nkuna launched
finality. Instead the employer was entitled
a review application on 19 March 2013,
to continue with its affairs, without
but the review application was deemed
having to wonder whether the employee
withdrawn because Nkuna failed to take
would ever take steps to prosecute the
further steps to prosecute the matter
review and bring the matter to finality.
for two years. Imperial Distribution then
The court therefore dictated that in such
launched an application to dismiss the
circumstances the Rule 11 application
review application.
ought to be granted in the interests of
expeditious resolution of labour disputes. In the SG Bulk case, the court dismissed
the Rule 11 application on the grounds
The court in Mthembu further laid out
that the Rule 11 application was
examples of conduct which is inconsistent
inappropriate by virtue of the fact that
with the expeditious resolution of a
Rule 11 applications only strictly cater for
dispute and constitutes an intolerable
matters which are not provided for by the
abuse of the court’s process. This conduct
9 | EMPLOYMENT LAW ALERT 21 June 2021EMPLOYMENT LAW
What is a Rule 11 application in terms
of the Labour Court rules?...continued
Labour Court rules. The court held that the roll. Instead the court referred to the legal
referral application was governed in terms principle established in SAPU obo Mnisi
The court disagreed with of Rule 4(a) of the Labour Court rules v SSSBC & Others. The court in this case
which provides that parties are obliged to established that:
the legal principle in hold a pre-trial conference 10 days after
Macsteel namely that, the a statement of response is delivered and
“Once a case has been withdrawn,
such a case is not justiciable in a court
Labour Court is obliged failure to do so in terms of subrule (7)
of law. The dismissal of a review that
to strike the matter from provides that the matter may be enrolled
has been withdrawn no longer affect
for hearing on the directions of a Judge
the roll on the grounds where the Judge would most likely direct
the interest of the parties. It has no
of lack of jurisdiction or parties to convene the pretrial.
practical effect to the parties, nor
does it serve the interests of justice.
allow the litigant affected Moreover, the court held that the practice A review application that is deemed
by the undue delay to file a manual provides that if 6 months lapses to be withdrawn does not exist. Put
separate Rule 11 application without steps taken, the registrar must differently, there is nothing before
archive a file. The court was of the view the court to be dismissed. This court
demonstrating why the
that in order to achieve the dismissal of a will have no jurisdiction to dismiss a
matter should be dismissed referral, the respondent party must request non-existent review application. A
or struck from the roll. the Registrar to archive the file instead of review application that is set down for
approach the court to seek a dismissal by a hearing after having been deemed
way of a Rule 11 application. withdrawn ought to be struck off the
roll rather than being dismissed.”
In the latter judgment Mr. Nkuna launched
a review application on 19 March 2013 Correct approach?
but the review application was deemed
In terms of the most recent case law,
withdrawn because Mr. Nkuna failed to
Rule 11 applications to dismiss an
take further steps to prosecute the matter
application in the Labour Court are
for two years. Imperial Distribution then
evidently dealt with differently. The
launched an application to dismiss the
Macsteel case provides that the Labour
review application.
Court is obliged to strike the matter
The court disagreed with the legal from the roll on the grounds of the lack
principle in Macsteel namely that, the of jurisdiction or may allow the litigant
Labour Court is obliged to strike the matter affected by the undue delay to file a
from the roll on the grounds of lack of separate Rule 11 application which would
jurisdiction or allow the litigant affected by demonstrate why the matter should
the undue delay to file a separate Rule 11 be dismissed or struck from the roll in
application demonstrating why the matter instances where a review application is
should be dismissed or struck from the archived and consequently regarded as
lapsed as a result of a party’s failure to
comply with the Practice Manual. This is
even more pertinent where there is no
10 | EMPLOYMENT LAW ALERT 21 June 2021EMPLOYMENT LAW
What is a Rule 11 application in terms
of the Labour Court rules?...continued
substantive application for reinstatement not justiciable in a court of law because
of the review application, or no there is essentially nothing before the
The correct approach condonation sought for the undue delay in court to be dismissed. And technically the
filing the record. court will have no jurisdiction to dismiss
therefore seems to be the
a review application which is deemed as
approach followed in the Additionally, the Mthembu case has
non-existent. A review application that is
piggybacked off of the principle
SG Bulk and Nkuna cases. established in the Macsteel case but
set down for a hearing after having been
deemed withdrawn ought to be struck off
has held that the opposing party in a
the roll rather than being dismissed.
review application can institute a Rule 11
application as soon as a matter is deemed The correct approach therefore seems to
withdrawn, and the reviewing party be the approach followed in the SG Bulk
does nothing by way of an application to and Nkuna cases. Thus, a litigant should
reinstate or to seek condonation for non- opt to have the Registrar archive a matter
compliance with the time frames for the should there be delays in the prosecution
matter to be resurrected. The reason for thereof instead of making an application
this is to prevent the opposing party from to dismiss proceedings before the Labour
waiting endlessly for the reviewing party to Court. This is because essentially once
act which is antithesis to the objectives of a matter is deemed withdrawn the
the LRA to resolve disputes expeditiously. application loses its existence and the
court therefore has no jurisdiction to
The SG Bulk case on the other hand has
dismiss the matter.
provided that in the instances where an
application is governed by the Rules of When may a matter be archived?
the Labour Court, a Rule 11 application
An application may be archived in the
is unsuitable and should accordingly
case of an application in terms of Rule 7
be dismissed. This is because Rule 11
or Rule 7A, when a period of six months
applications only apply to applications
has elapsed without any steps taken by
which are not governed by the Rules of
the applicant from the date of filing the
the Labour Court. In this case the referral
application, or the date of the last process
application was governed in terms of
filed. In the case of referrals in terms of
Rule 4(a) of the Labour Court rules and was
Rule 6, when a period of six months has
therefore dismissed. The Nkuna matter
elapsed from the date of delivery of a
also dismissed the Rule 11 application in
statement of case without any steps taken
terms of a review application and relied
by the referring party from the date on
upon principles established in the case of
which the statement of claim was filed,
SAPU obo Mnisi v SSSBC & Others. Instead
or the date on which the last process was
of following the approach in Macsteel,
filed or when a party fails to comply with
Moshoana J held that once a case has
a direction issued by a judge within the
been deemed withdrawn, such a case is
11 | EMPLOYMENT LAW ALERT 21 June 2021EMPLOYMENT LAW
What is a Rule 11 application in terms
of the Labour Court rules?...continued
stipulated time limit. In addition to this be filed within the time limits prescribed
matters may be archived once the registrar by rule 7. The Judge President will then
If the applicant fails to has notified the applicant in terms of allocate the file to a judge for a ruling, to
rule 7A(5) that a record has been received be made in chambers, on any extension
file the record within the and may be uplifted, the applicant must of time that the respondent should
prescribed period, the collect the record within seven days. be afforded to file the record. Lastly, a
applicant will be deemed For the purposes of Rule 7A(6), records review application may be archived and
to have withdrawn the must be filed within 60 days of the date regarded as lapsed when the applicant
on which the applicant is advised by the has not ensured that all the necessary
application unless the registrar that the record has been received. papers in the application are filed within
applicant has during that If the applicant fails to file the record within twelve (12) months of the date of the
period requested the the prescribed period, the applicant will be launch of the application (excluding Heads
deemed to have withdrawn the application of Arguments) and the registrar is informed
respondent’s consent for
unless the applicant has during that period in writing that the application is ready for
an extension of time and requested the respondent’s consent for an allocation for hearing. Where this time
consent has been given. extension of time and consent has been limit is not complied with, the application
given. If consent is refused, the applicant will be archived and be regarded as lapsed
may, on notice of motion supported by unless good cause is shown why the
affidavit, apply to the Judge President in application should not to be archived or be
chambers for an extension of time. The removed from the archive.
application must be accompanied by
proof of service on all the other parties Michael Yeates and Shanna Eeson
and answering and replying affidavits may
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12 | EMPLOYMENT LAW ALERT 21 June 2021OUR TEAM
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13 | EMPLOYMENT LAW ALERT 21 June 2021OUR TEAM
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