A SHORT SUMMARY OF THE LEGAL PRINCIPLES APPLICABLE TO REVIEW REINSTATEMENT APPLICATIONS

In E Tradex (PTY) Ltd t/a Global Trade Solution v Finch & others (E Tradex) (2022) 43 ILJ 2727 (LAC) at paras 10 to 12, the Labour Appeal Court (LAC), clarified the effect of the Practice Manual in dealing with the archiving of files in the following terms:

‘The use of the term ‘archived’ is peculiar to the Labour Court Practice Manual. In the general civil courts, for example, the failure to prosecute an appeal timeously results in the appeal having lapsed. The effect of that is that the case shall not be dealt with by a court unless an application to reinstate the appeal is made. It is, in our view, plain that the archiving of a Labour Court case was intended to have the identical effect; indeed, clause 16.3 goes even further, to equate the consequence of an archiving of a case to be understood to mean the application is ‘dismissed’, albeit that a procedure exists to reinstate the case on good cause shown. It must therefore follow that the archived case acquires a peculiar status which requires the delinquent party to justify why it should be reinstated and thereafter be entertained by a court in the wake of a lack of expeditious prosecution. The Labour Court a quo, treated the ‘archiving’ as an administrative act, not as a matter of status. The significance of this distinction between status and an administrative act is that the acquisition of a peculiar status means that upon a given event, the status automatically adheres to the case. That status has legal consequences which a mere administrative act by the registrar cannot undo. On these facts, on 16 January 2021, when the 12-month period since the launch of the application in terms of clause 11.2.7 had expired, automatically the case acquired the status of being archived, i.e., having lapsed or having been dismissed.’

Similarly, the LAC in South African Police Services v Coericius & others [2023] 1 BLLR 28 (LAC) at para 9, in relation to ‘deemed withdrawal’ found that:

‘Because the respondent had raised squarely the issue that the review application was, in terms of clause 11.2.3, “deemed to be withdrawn” and sought an order dismissing it, the Labour Court had to give an answer. What does “withdrawn” in the context of clause 11.2.3 mean? Plainly, it must be understood to mean that the application is abandoned and such an applicant is no longer intent on seeking the relief in the review application.’

The LAC in E Tradex, at paras 7, 9 and 11, further and in relation to the nature of the revival process recorded that:

‘The acts or omissions of the registrar are irrelevant to the decision which resolves the controversy about the archiving of the case…. There can be no plausible doubt that once the case is ‘archived’ it requires the intervention of the court to ‘un-archive’ it. There is no room to read into these provisions a role for the registrar to ‘resuscitate’ the case… The Labour Court a quo, treated the ‘archiving’ as an administrative act, not as a matter of status. The significance of this distinction between status and an administrative act is that the acquisition of a peculiar status means that upon a given event, the status automatically adheres to the case. That status has legal consequences which a mere administrative act by the registrar cannot undo.’

E Tradex thus confirmed the need for an application to retrieve the matter from archives where a period of twelve months has lapsed without the review application being enrolled. 

In Bennet Shibogde v Minister of Safety and Security & others, [2012] ZALCJHB 64 at para 23 (footnotes omitted), the Labour Court (LC) in relation to reinstating withdrawn proceedings recorded that:

‘Yet the fact that a matter is withdrawn is not necessarily a bar to reinstituting proceedings. It seems that the prevailing view is that a claim is not determined by the withdrawal of the claim, but the withdrawal is equivalent to a grant of absolution from the instance. It therefore remains open for the applicant to reinstitute proceedings as the merits of the claim have not been adjudged.’’

In Kgobokowe v CCMA & others (2012) 33 ILJ 235 (LC) at 56 and 57, the LC reiterated that a withdrawn dispute could be set aside but by inference cautioned that principles of fairness would impact on such decision, As, such the LC held that:

‘On the basis of [Roupell] I am of the view that a firm principle is established in this case and I see no reason why it should not be authority for the proposition that a withdrawal can be withdrawn. The fact that the applicant has the right to reinstate the matter back on the roll does not mean that he or she is guaranteed success in every such case. I’m of the view that w(h)ere the respondent may be prejudiced by the reinstatement, for example, where a long time had elapsed before such case is reinstated and all evidence is lost, e.g. witness can no longer be traced, have died, etc. An applicant should not succeed.’

In South African Municipal Workers Union & others v Zenzeleni Cleaning and Transport Services CC & others [2015] ZALCJHB 47 at para 15, the LC again stressed that a withdrawn dispute is capable of reinstatement and that only a transactio would constitute an absolute bar to reinstatement. In this regard the LC found that:

‘There is no automatic legal consequence that a withdrawal of a dispute means that the withdrawal cannot be withdrawn, and the dispute be re-enrolled. Once the applicants’ application to have the matter re-enrolled was made it was incumbent on the Commissioner to enquire as to whether the withdrawal precluded the applicants from proceeding further with the dispute. It is only where the withdrawal is consequent to the compromise of the dispute, that it cannot be withdrawn. It appears from the papers, that had the Commissioner enquired into the nature of the withdrawal, he would have found that the withdrawal did not compromise the applicant’s claim.’

In relation to the process applicable to a reinstatement application, the LAC in Samuels v Old Mutual Bank (2017) 38 ILJ 1790 (LAC) at paras 16 and 17 (footnotes omitted), recorded that:

‘Clause 16.2 does not specifically state that in an application for the retrieval of the file, a party who brings that application must show good cause why the file must be retrieved from the archive. It however states in no uncertain terms that the provisions of Rule 7 will apply in an application brought under the Clause 16.2. Clause 11.2.7 applicable to Rule 7 and 7A applications requires that a party who applies for a file to be removed from the archive must show good cause why the file must be removed from the archive. Furthermore, an applicant who applies for a file that has been archived for failure to comply with an order by a Judge to file a pre-trial minute, to be removed from archives, has to show good cause why such a file should be removed from the archives. There is therefore no doubt that showing good cause is a requirement for a file to be removed or retrieved from the archives in terms of Clause 16.2. In essence, an application for the retrieval of a file from the archives is a form of an application for condonation for failure to comply with the Court Rules, timeframes and directives. Showing good cause demands that the application be bona fide; that the applicant provide a reasonable explanation which covers the entire period of the default; and show that he/she has reasonable prospects of success in the main application, and lastly, that it is in the interest of justice to grant the order. It has to be noted that it is not a requirement that the applicant must deal fully with the merits of the dispute to establish reasonable prospects of success. It is sufficient to set out facts which, if established would result in his/her success. In the end, the decision to grant or refuse condonation is a discretion to be exercised by the court hearing the application which must be judiciously exercised. ‘

In Robor Tube (Pty) Ltd v MEIBC & others (Robor) (2018) 39 ILJ 2332 (LC) at para’s 7 and 8, the LC further concluded that:

‘In my view, there ought to be no reason, in principle, why an application that has been withdrawn ought not to be capable of reinstatement… There are obvious process-related differences between the withdrawal of a referral to conciliation and the withdrawal of an application enrolled for hearing on this court’s motion roll, but it seems to me that an applicant ought to be able to have the dispute heard and determined by way of a re-referral or re-enrollment, unless there is some imperative that militates against that, for example, a claim has been withdrawn in terms of a settlement agreement and thus extinguished. I fail to appreciate why the reinstatement of applications that have been withdrawn should be limited to those that have been removed or struck from the roll, or that any withdrawn application must necessarily recommence with the delivery of a fresh notice of motion and founding affidavit. To impose the latter requirement would simply further delay the determination of the review application. The imperative of expeditious dispute resolution dictates that the application be re-enrolled and argued.’

Similarly, in MEC: Department of Health Eastern Cape Province v PHSDSBC & others [2020] ZALCPE 4 at para’s 14 and 15, in following the Robor decision, the LC held that:

‘My brother Van Niekerk J in the matter of Robor Tube (Pty) Ltd v MEIBC and others took a view that a withdrawn application can be reinstated. He further took a view that a fresh notice of motion and an affidavit are not required for a withdrawn review. He also held that such applications to reinstate should be considered on the strength of the inherent powers that this Court has. I am in agreement. I may add, in my view, since a right to review is automatic, refusing applications to reinstate is as good as denying an applicant an automatic right of review. In my view, it is not a requirement that an applicant must demonstrate excellent prospects of success to gain reinstatement. Such is not required since all that an applicant would obtain is a regain of the automatic right of review.’