Is the failure to file written submissions in an appeal similar to the failure to appear in an open court?

The development of our labour jurisprudence has introduced various ways for the expeditious resolution of labour disputes. The Practice Manual of the Labour Court of South Africa is one such example which empowers judges to determine the procedure to conduct court proceedings and this includes the power to decide an application for leave to appeal in chambers and not in an open court. From this, the question arises whether the failure to file written submissions in an appeal is similar to not appearing in an open court thereby constituting a ground for the appeal to be dismissed. This question was recently dealt with by the Labour Court in Ndebele v South African Police Service and Another.

4 Sep 2017 2 min read Employment Alert Article

In this case, the employer brought a review application to review and set aside the outcome of the disciplinary hearing. The review application was successful and the disciplinary hearing outcome was substituted with an order that the employee was guilty of the charges. Unhappy with the order, the employee filed an application for leave to appeal. The judge’s associate notified both parties of the provisions of clause 15.2 of the Practice Manual which requires the parties to file written submissions. Despite this, none of the parties filed their written submissions. Clause 15.2 of the Practice Manual states that an application for leave to appeal will be decided by the judge in chambers on the basis of the written submissions. 

In dealing with the parties’ failure to file their written submissions, the judge discussed the Ralo v Transnet Port Terminals and Others case where the Labour Court held that although the Practice Manual is flexible in its application, it is not a guideline to be complied with at the convenience of the parties. It is an established principle that the provisions of the Practice Manual are binding. 

The judge found that:

“Considering that a Judge is entitled… to decide a leave to appeal application in chambers based on written submissions, the failure to file written submission in these instances may be viewed to be similar to a party failing to appear in Court to argue the case…”

The judge also found that the employee’s failure to file the written submissions despite the directive to do so is a sufficient reason to dismiss the application for leave to appeal. 

It is clear from this decision that the written submissions for a judge sitting in chambers are similar to oral submissions by counsel in an open court. This case highlights that the failure to file written submissions in an application for leave to appeal is a ground for the judge deciding the application in chambers, to dismiss such application.

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