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Article

Symptoms of Withdrawal

Fasken
Reading Time 4 minute read
The Labour Court's different approach to the deemed withdrawal of review applications
 
This article was prepared by Neil Searle and candidate Emma Alimohammadi.
 
The procedural directives issued by the Judge President of the Labour Court in the 2013 Practice Manual have played an invaluable role in promoting consistency and certainty in the practices of the Labour Court, particularly in relation to the prosecution of review applications under section 145 of the Labour Relations Act, 1995 (LRA).  However, one such directive has, despite the best intentions of the Judge President, resulted in considerable procedural uncertainty. 
 
The offending directive is contained in paragraph 11.2 of the Practice Manual and provides that, in a review application, the record of the relevant arbitration proceedings must be filed within 60 days of the date on which the applicant is advised by the registrar of the Labour Court that the record has been received and, if the applicant fails to file the record within the prescribed period, the applicant will be deemed to have withdrawn the application.  
 
While the meaning of these words may seem clear enough, the confusion arises because the Practice Manual also allows the applicant in a review that is deemed to have been withdrawn to bring an application to revive the review on good cause shown.  The right of the applicant to bring an application to revive the review has naturally left respondents with little of the comfort they may otherwise have felt at the deemed withdrawal of the review.  Consequently, many respondents have, despite the above directive, continued to bring applications in terms of rule 11 of the Labour Court Rules to dismiss reviews that have already been deemed withdrawn in terms of the Practice Manual.  
 
That this uncertainty is shared by Judges and litigants alike is clear from the growing list of cases on the topic which have swung different ways.  For example, in the cases of Mchunu v Rainbow Farms (Pty) Ltd (case no D203/15 delivered on 12 June 2017) and MJRM Transport Services CC v CCMA & others (2017) 38 ILJ 414 (LC), the Labour Court held that this deeming provision does not mean that the review application has actually been withdrawn and, in the interests of certainty and finality, the respondent is entitled to bring a rule 11 application to have the review dismissed.  But, on the other hand, in Ralo v Transnet Port Terminals and others [2015] 12 BLLR 1239 (LC), the Labour Court found that once a review application is deemed to have been withdrawn the effect is that the review, and any applications ancillary to it, become moot.
 
This issue recently came before the Labour Court again in the case of Savuka Mine v Mazozo and others (reportable case no JR1408/17 delivered on 20 March 2019).  In that case, Mr Mazozo had launched an application to review and set aside an arbitration award in terms of section 145 of the LRA.  However, like many applicants, Mr Mazozo failed to serve and file the record within the prescribed 60 day period.  Accordingly, the respondent in the review, Savuka Mine, brought an application in terms of rule 11 to dismiss the review application on account of Mr Mazozo’s failure to diligently pursue his review.  Mr Mazozo did not oppose the Mine’s rule 11 application.
 
The rule 11 application was heard by Moshoana J.  In determining the matter, Moshoana J placed much store on the following dictum of Van Niekerk J in Ralo:

“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 meaning of the Practice Manual is to the effect that the applicant must be regarded as having withdrawn the review application”.
 
In keeping with the above dictum, Moshoana J reasoned that a review application that is deemed to be withdrawn does not exist and, as such, there is nothing before the court to be dismissed.  Thus, Moshoana J disagreed with the court’s judgments in Mchunu and MJRM Transport Services and favoured the court’s approach in Ralo instead.  On this basis, Moshoana J dismissed Savuka Mine’s rule 11 application “for want of jurisdiction”.
 
While, in many respects, the Mazozo judgment may be welcomed for its pragmatic and expeditious approach to the issue of deemed withdrawals, a concern that will continue to linger in the minds of respondents is the enduring risk that, despite a deemed withdrawal, the applicant may at any stage bring an application to revive the review.  For this reason, and given the obvious inconsistencies in the Labour Court’s treatment of the issue, it is likely that we have yet to hear the last word on the legal effect of the deemed withdrawal of review applications under the Practice Manual.