Ngwako Rocky Modika v CCMA Johannesburg and Others

On 29 January 2018, an arbitrator issued a jurisdictional ruling finding that the CCMA lacked jurisdiction to adjudicate the applicant's dispute. The applicant filed a review application to set aside this ruling. The review application was supposed to be filed by 9 March 2018 (within six weeks), but was only filed with the registrar on 18 August 2020, more than 29 months late. The application displayed wholesale non-compliance with the Rules of the Labour Court: it was never properly served on any respondent (only sent by email to the third respondent on 27 July 2018); the application sent by email was not signed or commissioned; no service affidavit was filed; no proper condonation application was brought; the record was not filed within the prescribed period and was incomplete; no Rule 7A(8) notice was filed. The third respondent's attorneys wrote to the applicant's attorneys (M S Mnisi Attorneys) on 21 May 2021 requesting that the matter be removed from the roll due to these defects. Mnisi Attorneys responded with a settlement proposal and refused to withdraw the matter, proceeding to a contested hearing.

• Whether the review application complied with the mandatory requirements of Rule 7A of the Rules for the Conduct of Proceedings in the Labour Court
• Whether service by email constitutes proper service under the Labour Court Rules
• Whether the application should be dismissed due to non-compliance with the Rules and Practice Manual
• Whether the applicant's attorneys should be ordered to pay costs de bonis propriis due to their conduct

1. The application is dismissed. 2. The third respondent's costs are to be paid de bonis propriis by M S Mnisi Attorneys on the scale as between attorney and client. 3. The cost order in paragraph 2 is provisional and M S Mnisi Attorneys are afforded seven days to make written submissions as to why the order should not be confirmed, failing which the cost order will be final. 4. The Registrar of the Labour Court is directed to forward a copy of the judgment to the Legal Practice Council.

1. A review application must comply with Rule 7A of the Labour Court Rules, including delivery of the notice of motion to all respondents and the registrar within six weeks of the award or ruling. An application is only made within the prescribed period if it is delivered to all respondents and filed with the registrar within that period (following Mbatha v Lyster). 2. Service by email does not constitute proper service under the Labour Court Rules where the Rules prescribe specific methods of service. 3. The provisions of the Practice Manual are binding and must be adhered to; they promote uniformity, consistency, standards of conduct, and the statutory imperative of expeditious dispute resolution (following Ralo v Transnet Port Terminals, Tadyn Trading v Steiner, and Samuels v Old Mutual Bank). 4. Where there is wholesale non-compliance with the Rules from the onset of litigation, including failure to serve properly, failure to file within prescribed time limits, failure to bring a proper condonation application, and failure to file the record and required notices, the application is defective and flawed to an extent that it cannot survive and must be dismissed (following Osho Steel v Ngobeni). 5. An attorney may be ordered to pay costs de bonis propriis where there has been negligence in a serious degree or where the attorney has acted in a manner constituting a material departure from the responsibilities of their office as an officer of the court, including where they persist with fundamentally defective applications despite being notified of the defects (following SA Liquor Traders' Association v Chairperson, Gauteng Liquor Board and Indwe Risk Services v Van Zyl).

The Court observed that the non-compliance in this case was "a spectacular and shocking display" demonstrating "how every applicable rule has been ignored and disregarded." The Court noted that a delay of more than 29 months is "no doubt material, excessive and inordinate given the context within which labour litigation takes place and the system that is designed to ensure the effective and expeditious resolution of labour disputes." The Court commented that the Practice Manual expressly states that a review application is by its nature an urgent application, giving context to the seriousness of the delay. The Court remarked that "the non-compliance with the Rules is flagrant and blatant" and expressed that "one could reasonably accept that a practising attorney assisting a paying client, should at least consider the law, the applicable rules and practice directives when an application for review is filed and other parties are dragged to Court." The Court further observed that "to persist with this application in the face of the defects as indicated by the Respondent, and of which Mnisi attorneys should have been aware of had they acted diligently, is not merely an error of judgment and does not indicate bona fides." The Court expressed its displeasure with the attorneys' conduct, noting they acted "in a reprehensible manner, not only towards their client, but also towards this Court, with no regard to their duty as officers of the Court." The Court's direction that a copy of the judgment be forwarded to the Legal Practice Council serves as an additional mark of the Court's displeasure with the attorneys' conduct.

This case is significant in South African labour law for emphasizing the mandatory nature of compliance with the Rules of the Labour Court and the Practice Manual in review applications. It illustrates that wholesale disregard for procedural requirements will result in dismissal of applications. The case is also important for its approach to costs de bonis propriis against attorneys, clarifying that such orders are appropriate in exceptional cases where attorneys display blatant non-compliance with their duties as officers of the court and persist with fundamentally defective applications despite being notified of defects. The judgment serves as a warning to practitioners about the consequences of negligent and unprofessional conduct in labour litigation. It reinforces that the Practice Manual is binding and not to be adhered to or ignored at parties' convenience, and that review applications are by their nature urgent matters requiring strict compliance with time limits and procedural requirements.