JB Marks Local Municipality v SALGBC and Others

The applicant (JB Marks Local Municipality) approached the Labour Court to review and set aside an arbitration award issued on 10 February 2018, which reinstated the third respondent with retrospective effect and payment. The applicant issued the review application on 27 March 2018. The applicant filed a supplementary affidavit on 2 November 2018 (more than 6 months after launching the application) and served the transcribed record on 5 September 2019, well outside the 60-day period prescribed in the Practice Manual. The third respondent raised the issue that the review application had been archived in terms of clause 16.1 of the Practice Manual and/or deemed withdrawn under clause 11.2.2 due to non-compliance with prescribed time periods.

• Whether the review application was archived and deemed dismissed in terms of clause 16.1 and 16.3 of the Practice Manual due to the applicant failing to prosecute the application for more than 6 months
• Whether the review application was deemed withdrawn in terms of clause 11.2.2 of the Practice Manual due to failure to deliver the record within 60 days
• Whether the third respondent was required to first apply for the matter to be archived before the archiving provisions could take effect
• The status and binding nature of the Labour Court Practice Manual
• Whether the Court had jurisdiction to hear the matter in light of non-compliance with the Practice Manual

The review application was struck from the roll as it was deemed withdrawn in terms of clause 11.2.2 of the Practice Manual. There was no order as to costs.

The binding legal principles established are: (1) The Labour Court Practice Manual is binding on parties and the Labour Court, containing directives that the Judge President is entitled to issue to promote expeditious dispute resolution; (2) Where an applicant fails to deliver the record within 60 days as required by clause 11.2.2 of the Practice Manual, the review application is deemed to have been withdrawn automatically, without requiring a formal application by the opposing party; (3) The word "deemed" in the Practice Manual has conclusive effect, meaning something is regarded as a fact regardless of objective truth; (4) When a review application is deemed withdrawn due to non-compliance with the Practice Manual, the Court has no jurisdiction to hear the matter in the absence of a formal application for reinstatement or condonation; (5) There is no prerequisite that an opposing party must apply for archiving before the archiving provisions of the Practice Manual take effect - the Registrar has the obligation to archive files when the prescribed conditions are met.

The Court made observations about clause 16.3 of the Practice Manual, noting that while the applicant's failure to prosecute for more than 6 months would normally result in archiving with the same consequences as dismissal, the subsequent filing of the record constituted taking a step that prevented outright dismissal under that provision. However, this did not save the application from being deemed withdrawn under clause 11.2.2. The Court also emphasized that to give effect to the purpose of expeditious dispute resolution, there is no need to bring an application (complying with Rule 7) for the archiving of a file. The Court noted that while it may be convenient for the Registrar to be informed of non-compliance, this is not a prerequisite for archiving in the relevant instances. The judgment reinforced that the Labour Court has a residual discretion to apply and interpret provisions of the Practice Manual depending on the facts and circumstances, but this discretion cannot be exercised to ignore clear non-compliance in the absence of proper applications for relief.

This case provides important clarification on the binding nature and automatic operation of the Labour Court Practice Manual provisions. It confirms that non-compliance with prescribed time periods in the Practice Manual has automatic consequences - archiving or deemed withdrawal - without requiring a formal application by the opposing party. The judgment emphasizes the Labour Court's commitment to expeditious dispute resolution and strict adherence to procedural timelines. It establishes that once a review application is deemed withdrawn due to non-compliance with the Practice Manual, the Court lacks jurisdiction to hear the matter unless proper applications for reinstatement or condonation are brought. The case illustrates that parties cannot ignore procedural requirements and expect the Court to exercise discretion in a vacuum without formal applications for relief.