Skip to content

South Africa: Labour Court reiterates the potent consequence of a matter being archived

5 June 2024
– 6 Minute Read

DOWNLOAD ARTICLE

Overview

  • The Labour Court recently handed down judgment in the matter of Johannesburg City Parks and Zoo v South African Municipal Workers Union and Another in which it considered whether it had jurisdiction to consider an application for an order dismissing a dispute referred to the Labour Court by the union for lack of diligent prosecution (Rule 11 application).
  • After a brief consideration of divergent Labour Appeal Court judgments and a cursory acknowledgement of the Labour Court’s own divide on the issue, Itzkin AJ concluded that the file had indeed been archived, which had the same effect as the matter being dismissed. As a result, the Court did not have jurisdiction to entertain the Rule 11 application.

On 2 May 2024, the Labour Court handed down judgment in which it considered whether it had jurisdiction to consider a Rule 11 application brought by Johannesburg City Parks and Zoo (City Parks). In its application, City Parks sought an order dismissing the dispute referred to the Labour Court by the South African Municipal Workers Union (SAMWU) for lack of diligent prosecution. After a brief consideration of divergent Labour Appeal Court judgments and a cursory acknowledgement of the Labour Court’s own divide on the issue, Itzkin AJ concluded that the file had indeed been archived and that, as a result, the Court did not have jurisdiction to entertain the Rule 11 application.

Background facts

The facts of this matter are relatively thin from the judgment. SAMWU referred action proceedings to the Labour Court by filing a statement of claim. City Parks responded. What followed these steps were multiple extended stretches of inactivity, the longest of which was a period of 16 months after City Parks had filed its statement of response.

Eventually, City Parks brought an application in terms of Rule 11 of the Labour Court Rules (Rules), seeking to have the action proceedings dismissed for lack of diligent prosecution by SAMWU. The Rule 11 application was opposed by SAMWU on multiple grounds (which it is not necessary to detail for present purposes).

The issue before the Labour Court was whether the action proceedings had indeed been archived by virtue of clauses 16.1 and 16.3 of the Practice Manual. And, if so, whether the Labour Court would have jurisdiction to entertain a Rule 11 application.

Clause 16.1 and 16.3 of the Practice Manual, read together, provide that a file will be archived if 6 months have passed without a step being taken in action proceedings. Once a file has been archived, it has the same consequence (as far as the respondent is concerned) as the matter having been dismissed.

Findings of the Court

The Labour Court ruled that it did not have jurisdiction to entertain the Rule 11 application. In his judgment, Itzkin AJ highlighted the following:

  • Clause 1.2 of the Practice Manual provides that the document is not a substitute for the Rules and instead governs the manner in which the Rules are applied in the day-to-day functioning of the Court. Nonetheless, while presiding officers may have some flexibility in the application of the Practice Manual, litigants must strictly abide its provisions.
  • Both the Labour Court and the Labour Appeal Court experienced a divide in the treatment of the Practice Manual’s archiving provisions. However, a prevailing school of thought was beginning to emerge.
  • In E Tradex (PTY) Ltd t/a Global Trade Solution v Finch and Others (2022) 43 ILJ 2727 (LAC), the Labour Appeal Court considered whether a review application had been archived by virtue of the applicant’s failure to set the matter down within twelve months (as prescribed by clause 11.2.7 of the Practice Manual). The LAC concluded, among other things, that an archived case acquires a particular status that requires a delinquent party to justify why it should be reinstated. Therefore, archiving is not an administrative act, but a matter of status that is acquired upon the occurrence of an event (such as a failure to take certain steps within a certain period of time).
  • The E Tradex principle has since been embraced by the Labour Court in at least one other judgment. More importantly, Itzkin AJ concluded that he was bound by the LAC’s judgment.

In this matter, the Labour Court found that SAMWU’s referral of the action proceedings had been archived due to its inactivity, which had the same effect as the matter being dismissed. Accordingly, the Labour Court did not have jurisdiction to entertain the merits of the Rule 11 application. The matter had, however, been set down for trial and the Court found that it was appropriate in the circumstances to make a declaratory order confirming that the matter had been archived and acquired a status which precluded it from proceeding to trial.

Key take-aways and the position under the new Rules

This judgment is helpful in that it reiterates the true consequence of a matter being archived at the Labour Court. As far as both the Court and the respondent are concerned, the matter is dismissed until the applicant launches, and the Court grants, an application to reinstate the file. Put differently, the other party need not take any further steps to seek to dismiss the matter (unless other factors make such steps appropriate).

The new rules for the Labour and Labour Appeal Courts will soon become effective (see our newsflash summarising the incoming changes here) and will replace both the current Rules and completely do away with the Practice Manual. Nonetheless, the archiving provisions from the Practice Manual (and others) have been incorporated in the new version of the Rules. In summary, under the new regime, the archival of a matter is dealt with as follows:

  • Rule 7(2) of the new Rules provides that if, within three months of initiating proceedings, no further documentation is filed or other action taken by the initiating party, the file will automatically be closed and archived. However, the Registrar must first issue a notice affording the initiating party 15 days to take a further step. This is of course different to the wording in the Practice Manual considered by the courts in the cases above – it seems that under the new Rules, the Registrar will be required to take an administrative step before the file can be considered archived.
  • Rule 7(2) also confirms that a party is able to retrieve an archived file only in terms of a court order, although it is likely that the bar for such applications will be raised, given that the Registrar is required to first issue a written notice.
  • Rule 69(2) further provides that, subject to rule 7, the Registrar must archive a file in the following circumstances:
    • in the case of any motion proceeding, when a period of 6 months has elapsed without any steps taken by the applicant from the date of the filing of the application, or the date of the last process filed;
    • in the case of referrals for adjudication (i.e. action proceedings), when a period of 6 months has elapsed from the date of delivery of the statement of claim without any steps taken by the referring party from the date on which the statement of claim was filed, or the date on which the last process was filed; or
    • When a party fails to comply with a direction issued by a judge within the stipulated time limit.
  • Rule 69(3) provides that the applicant or plaintiff, as the case may be, may file an application, on affidavit and on notice to all parties, to seek the retrieval of the file and the reinstatement of the proceedings.

Notably, the wording from the Practice Manual that placing a file in archives has the same consequences as the matter having been dismissed, has not been brought across into the new Rules. It accordingly remains to be seen whether, under the new Rules, the court will entertain an application by an opposing party to finally dismiss a matter that has been archived.