The South African Police Services v Gerhard Coericius

The South African Police Services (SAPS) sought to review and set aside a condonation ruling dated 14 October 2016 and an arbitration award dated 5 March 2019 from the Safety and Security Sectoral Bargaining Council (case number PSSS305-16/17). The review application was launched on 17 April 2019. The transcribed record of the arbitration was filed on 19 September 2019, outside the 60-day time period prescribed in the Practice Manual of the Labour Court. SAPS did not seek consent for an extension of time, nor did it apply for such extension. By March 2020, six months had passed and SAPS had failed to file its Rule 7A(8) Notice despite demand. The first respondent brought a Rule 11 application dated 13 May 2020 seeking dismissal of the review for lack of prosecution. SAPS filed a supplementary founding affidavit on 19 August 2020 seeking condonation for late delivery, citing difficulties in obtaining a complete record and Covid-19 pandemic-related issues at the State Attorney's office. SAPS argued that it had filed part of the record within 60 days (albeit incomplete) and therefore Clause 11.2.3 of the Practice Manual did not apply. SAPS did not oppose the Rule 11 application and only filed a last-minute Notice of Motion on 10 May 2021 (two days before the hearing) seeking condonation and reinstatement 'if necessary' in the event the Court found the file was archived.

• Whether the review application was deemed withdrawn in terms of Clause 11.2.3 of the Practice Manual of the Labour Court for failure to file the record within 60 days
• Whether filing an incomplete record within the 60-day period complies with the requirements of Clause 11.2.3
• Whether the Court had jurisdiction to hear the review application where it was deemed withdrawn and no proper application for reinstatement had been made
• Whether a Rule 11 application for dismissal for want of prosecution could succeed where no opposition had been filed
• Whether costs should be awarded against the State in circumstances of non-compliance with Court rules

The review application of the Ruling and Award under case number PSSS305-16/17 was dismissed with costs.

Where an applicant in a review application fails to file a complete record within the 60-day period prescribed by Clause 11.2.3 of the Practice Manual of the Labour Court, the review application is deemed withdrawn unless the applicant has requested the respondent's consent for an extension or applied to the Judge President for an extension. Filing an incomplete or partial record within the 60-day period does not constitute compliance with Clause 11.2.3. The word 'record' in Clause 11.2.3 means the complete record, not a part thereof. Once a review application is deemed withdrawn under Clause 11.2.3 and the applicant fails to bring a proper application for reinstatement or condonation, the Labour Court lacks jurisdiction to hear the review. The Labour Court has wide discretion under Rule 11(4) to dismiss a deemed withdrawn review application on a Rule 11 application for want of prosecution, in order to promote the statutory imperative of expeditious dispute resolution and give effect to the objects of the LRA.

The Court observed that it would defeat the concept of expeditious resolution of disputes if opposing parties were required to wait endlessly for reviewing parties to file everything required by the rules before complaining about non-compliance. Once a matter is deemed withdrawn and the reviewing party does nothing to seek reinstatement or condonation, the opposing party should not be placed at the mercy and whim of the reviewing party. The Court emphasized that there is a higher duty on the State to respect the law, fulfill procedural requirements and tread respectfully when dealing with rights, citing the Constitutional Court's statement that 'Government is not an indigent or bewildered litigant, adrift on a sea of litigious uncertainty, to whom the courts must extend a procedure-circumventing lifeline. It is the Constitution's primary agent. It must do right, and it must do it properly.' The Court noted it is not too formalistic to expect the State Attorney to comply with the prescripts of the Practice Manual when individual litigants are expected to do so.

This case reinforces the binding nature of the Labour Court Practice Manual and the strict enforcement of time limits for filing records in review applications. It confirms that review applications are by their nature urgent and that courts will not tolerate dilatory conduct in their prosecution. The judgment emphasizes that the State, as the Constitution's primary agent, is held to a higher standard in complying with procedural requirements and cannot claim the indulgence often afforded to individual litigants. It clarifies that filing an incomplete record does not satisfy the requirements of Clause 11.2.3, and that applicants must follow the prescribed procedure for seeking extensions of time. The case also confirms the Labour Court's wide discretion under Rule 11(4) to dismiss review applications for want of prosecution, even where deemed withdrawn, in order to achieve the objects of the LRA and promote expeditious dispute resolution. It demonstrates that respondents are not required to wait endlessly for reviewing parties to comply with rules before bringing Rule 11 applications.