The position in respect of these dismissal applications has been unclear because of conflicting judgments handed down by the LC on this issue, the most recent of which is NUMSA obo Mavuso v Mini Mega (PTY) Ltd t/a Rustenburg Engine Centre (JR 1288/13)  ZALCJHB 180 (4 July 2022). In this matter, the LC dealt with an application for the dismissal of a review application due to a failure by the applicant party (the employer) to prosecute it as required by section 145 of the Labour Relations Act 66 of 1995 (LRA) and the Practice Manual of the LC.
Briefly, the employee was awarded reinstatement in terms of an arbitration award issued on 6 May 2013, and sent to both parties on 10 May 2013. On 4 July 2013, some 13 calendar days outside of the six-weeks’ period, the employer launched a review application challenging the award. The employer, however, did not file any application for the condonation of its lateness. No steps were subsequently taken by the employer in pursuit of finality in its review application thereafter. On 14 April 2016, the employee launched a Rule 11 dismissal application, in which he also sought an order making the award an order of the LC.
Dealing with the application, the LC found that it lacked jurisdiction to determine review application filed outside of the six-weeks’ deadline and where no condonation application was sought.
The LC, however, went further and held that, despite the lack of jurisdiction and despite the provisions of the Practice Manual, the review application in this matter stood to be dismissed in terms of Rule 11 because of the undue delay by the employer in prosecuting it.
Applying the Practice Manual
The LC reasoned that the Practice Manual is not to be applied rigidly, but flexibly. Furthermore, the LC held that the promulgation of the Practice Manual did not serve to obliterate judicial discretion on matters coming before the LC.
In relation to the deeming provisions of the Practice Manual, the LC held that these are not to be interpreted to mean that the LC is barred from exercising its discretion to dismiss a review application that has clearly not been prosecuted diligently by the applicant. To that end, the LC relied on two judgments, one in the LC and one in the South Gauteng High Court, where the courts dismissed an application for the withdrawal of an urgent application and an application for the withdrawal of a rescission application respectively. In both these matters, the principle established by the courts was that the discretion of the court(s) to, in appropriate circumstances, determine a matter despite its withdrawal by the applicant party remained intact.
The LC, therefore, granted the dismissal application due to the employer’s undue delay in prosecuting its review application, despite the review application having been filed out of time (jurisdiction) and despite it having been deemed withdrawn or dismissed in terms of the provisions of the Practice Manual.
The judgment is of particular importance as it seeks to provide much-needed clarity on the manner in which the LC is to deal with Rule 11 dismissal applications in the face of the provisions of the Practice Manual. In this case, the LC casts some light at the end of a long, drawn-out tunnel of litigation before it where, by reason of the provisions of the Practice Manual, true finality is often forfeited. Importantly, the LC’s direction to determine Rule 11 dismissal applications notwithstanding the dismissal or deemed withdrawn status of a review application subsists. This also assists employees’ quests for true finality in review applications that are not prosecuted diligently by employers, which promotes the policy considerations underpinning the LRA.
It remains to be seen whether the Labour Appeal Court will align itself with this attempt by the LC at achieving true finality in review applications brought in terms of section 145 of the LRA.