SG Bulk, A Division of Supergroup Africa (Pty) Ltd v Simon Thanduyise Khumalo and Another

Two separate applications were before the Labour Court. In the first matter (JS393/19), Mr Khumalo filed a referral alleging unfair dismissal based on operational requirements on 20 May 2019. SG Bulk filed a statement of response on 30 May 2019. The parties failed to hold a pre-trial conference as required by the Labour Court Rules, and a period of one year and four months elapsed without further steps being taken. SG Bulk then launched a Rule 11 application seeking to dismiss the referral on the basis of undue delay. In the second matter (JR537/13), Mr Nkuna launched a review application on 19 March 2013. The review application was deemed withdrawn under the Practice Manual because for a period of two years, Nkuna failed to take appropriate steps to prosecute it. Notwithstanding the deemed withdrawal, on 2 November 2020, Imperial Distribution launched a Rule 11 application seeking to dismiss the review.

• Whether the Labour Court has jurisdiction to dismiss a referral on the basis of undue delay through a Rule 11 application where the Rules and Practice Manual provide specific procedures for dealing with delays
• Whether the Labour Court has jurisdiction to entertain a Rule 11 application to dismiss a review application that has been deemed withdrawn or lapsed under the Practice Manual
• The proper interpretation of the Labour Appeal Court's judgment in Macsteel Trading Wadeville v Francois van der Merwe N.O regarding the Court's jurisdiction over lapsed/withdrawn review applications

1. The applications are dismissed. 2. There is no costs order.

1. Where the Labour Court Rules provide specific procedures for dealing with a particular situation (such as failure to hold a pre-trial conference), it is inappropriate to use Rule 11, which is designed to cater for situations not dealt with in the Rules. 2. Where the Practice Manual empowers the Registrar to archive a file after six months of inactivity, the respondent party must request the Registrar to archive the file rather than approach the Court for a dismissal order. 3. Where a review application is deemed withdrawn or lapsed under the Practice Manual, there is no longer a live matter before the Court and the Labour Court lacks jurisdiction to entertain a Rule 11 application seeking to dismiss that review. 4. Until an order is issued reinstating a withdrawn or lapsed review application, the Labour Court lacks jurisdiction to entertain a Rule 11 application regarding that review. 5. A deemed withdrawn or lapsed review application is equivalent to the matter being struck off, and the Court cannot dismiss a matter if the merits have not been considered.

The Court made the following non-binding observations: 1. The wording of the Practice Manual regarding archived files being "dismissed" is unfortunate and should more appropriately read "struck off" as opposed to "dismissed", since a Court is not entitled to dismiss a matter if the merits have not been considered. 2. The Court considered the dictum in Macsteel regarding the opportunity to file a Rule 11 application to be obiter dictum, as the main conclusion of the LAC was that the Labour Court determined a review application when it had no jurisdiction to do so. 3. The Court expressed that there is no significant difference between a lapsed review and a deemed withdrawn review - both are as good as being struck off. 4. The Court respectfully disagreed with the alternative interpretation suggested by Tlhotlhalemaje J in Mthembu v CCMA regarding the Court's jurisdiction over deemed withdrawn reviews.

This case clarifies the Labour Court's jurisdiction regarding deemed withdrawn or lapsed review applications and the appropriate procedural mechanisms for dealing with delays in prosecution of matters. It establishes that the Labour Court cannot dismiss a matter that has already been deemed withdrawn or lapsed under the Practice Manual, as there is no live matter before the Court. The judgment emphasizes the importance of following the specific procedures set out in the Labour Court Rules and Practice Manual rather than resorting to general Rule 11 applications where specific procedures already exist. The case also provides important guidance on the proper interpretation of the Labour Appeal Court's decision in Macsteel, clarifying that the Court only retains jurisdiction to entertain a Rule 11 application after a withdrawn or lapsed review has been substantively reinstated.