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[2021] ZALAC 4
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Cashbuild (Pty) Ltd v Poto N.O and Others (JA111/2019) [2021] ZALAC 4; [2021] 6 BLLR 565 (LAC); (2021) 42 ILJ 1441 (LAC) (2 March 2021)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JA111/2019
In
the matter between:
CASHBUILD
(PTY) LTD
Appellant
and
POTO,
P S N.O
First
Respondent
COMMISSION
FOR CONCILIATION MEDIATION AND
ARBITRATION
Second Respondent
NKOMO,
STEVEN Third
Respondent
Heard:
25 February 2021
Delivered:
2 March 2021
Coram:
Waglay JP, Savage and Molefe AJJA
JUDGMENT
SAVAGE
AJA
[1]
This appeal, with the leave of the Court
a quo
,
is against the judgment and order of the Labour Court (Lekale AJ)
handed down on 16 February 2018, in terms of which the review
application brought by the appellant, Cashbuild (Pty) Ltd, was
dismissed with costs.
[2]
The third respondent, Mr Steven Nkomo
(‘the employee’) was employed as a sales coordinator at
the appellant’s
Moloto branch, reporting to the branch
manager, Ms Patricia Mokoena. He was dismissed from his employment on
5 November 2014 for
gross insubordination after he failed to comply
with Ms Mokoena’s instruction not to comply with a customer’s
request
to collect roof tiles which she had purchased. When Ms
Mokoena confronted the employee he informed her that the customer had
insulted
him and he had decided to do what was necessary to make the
customer happy.
[3]
Aggrieved with his dismissal, the
employee referred an unfair dismissal dispute to the second
respondent, the Commission for Conciliation
Mediation and Arbitration
(‘the CCMA’). In the arbitration award dated 20 March
2015, the
first respondent (‘the
commissioner’)
found
the employee’s dismissal
substantively unfair. The employee was retrospectively reinstated
into his employment with the appellant
with a final written warning
for insubordination valid until 4 November 2015.
[4]
After the Labour Court on review found the
commissioner’s decision to be reasonable and dismissed the
review application with
costs, on 5
March
2018
the appellant filed an application for
leave to appeal
. Leave to appeal was
granted on 16 July 2018. Yet, the appellant filed its notice of
appeal on 15 November 2019, fifteen months
late, with the appeal
record filed thereafter on 14 February 2020.
[5]
Rule 5(1) of the Rules of the Labour Appeal Court Rules (‘the
Rules’) requires an appellant to deliver a notice of appeal
within fifteen (15) days of leave to appeal being granted ‘
or
any longer period that may be allowed by the court, on good cause
shown
’.
Rule 5(8)
requires
that:
‘
The
record must be delivered within 60 days of the date of the order
granting leave to appeal, unless the appeal is noted after
a
successful petition for leave to appeal....’
[6]
Since
the appellant failed to lodge the record of appeal within the period
prescribed in Rule 5(8), without an extension of time
having been
granted, the appellant is deemed, in terms of Rule 5(17),
[1]
to have withdrawn the appeal.
[7]
The appellant consequently applied for
the reinstatement of the appeal and condonation for the late filing
of the application for
leave to appeal and the appeal record. The
employee opposed both applications. The appellant claimed to have
been unaware that
its application for leave to appeal had been
granted. In his affidavit in support of the applications for
reinstatement and condonation,
the appellant’s attorney, Mr
Sean Snyman, stated that when an unnamed individual from his firm
first followed up with the
registrar’s office, the file was
“
still with the Judge
”
and that in a subsequent follow up in September 2018, the file could
not be found. In January 2019 and again in May 2019,
Mr Snyman
stated, without further explanation, that “
there
was still no luck in finding the file
”.
Thereafter, the attorney who dealt with the matter, Ms Thandi Moyo,
went on maternity leave from the beginning of July
2019. On her
return on 1 November 2019, she found an email addressed to her dated
10 July 2019, which attached a letter from the
employee’s
attorneys indicating that leave to appeal had been granted the
previous year and enquiring whether the appellant
intended to pursue
the appeal.
[8]
On 4 November 2019, the appellant’s
attorneys found the file at the Labour Court and the notice of appeal
and record of the
appeal were filed thereafter. In his affidavit, Mr
Snyman stated that the matter concerns a matter of importance to the
appellant
and that if the appeal was not to be reinstated and
condonation granted, serious prejudice would be suffered by the
appellant.
[9]
The employee, through his attorneys,
opposed the reinstatement and condonation applications given the
extensive delay. Issue was
also taken with the appellant’s
failure to file any confirmatory affidavit to confirm the events
deposed to by Mr Snyman,
which, it was submitted, were lacking in
detail and “sketchy”; and with the claim that the
appellant’s attorneys
would fail to oversee the work of an
attorney who was on maternity leave. Since the transgression did not
warrant the ultimate
penalty of dismissal, it was submitted the
appellant’s prospects of success are not good and that the
applications should
be dismissed with costs.
Discussion
[10]
A
court has an inherent discretion to grant condonation and reinstate
an appeal where the interests of justice demand it and where
the
reasons for non-compliance with the time limits have been explained
to the satisfaction of the court.
[2]
However, the grant of condonation and the reinstatement of an appeal
are not applications to be granted simply on the asking. The
appellant must provide a full and frank explanation for the reasons
for the delay, demonstrate that it bears some prospect of
success
[3]
and
show that it will suffer prejudice if the delay is not condoned.
[4]
This
list is not exhaustive since it is a conspectus of the facts that is
to be considered, with each factor not individually decisive
but
interrelated. In
Melane
v Santam Insurance
[5]
,
the
Court emphasised that in an application for condonation –
‘
The
basic principle is that the court has a discretion, to be exercised
judicially upon a consideration of all the facts, as in
essence it is
a matter of fairness to both sides. Among the facts usually
relevant are the degree of lateness, the explanation
therefor, the
prospects of success, and the importance of the case…’.
[11]
As
was made clear in
Toyota
SA Motors (Pty) Ltd v Commission for Conciliation, Mediation &
Arbitration
,
[6]
time periods in the context of labour disputes are important in that
they are aimed at bringing about the timely resolution of
such
disputes. A delay undermines the primary objects of the Labour
Relations Act and risks causing detriment to workers
and/or
employers.
[12]
The bald claim that the appellant’s
attorneys periodically attended at the Labour Court only to be unable
to find the file
for months on end, without any detail as to further
efforts made to determine whether leave to appeal had been granted,
does not
constitute a satisfactory explanation for the excessive
delay in this matter. Such explanation indicates not only an extreme
indifference
and absence of any urgency to the matter, but also a
total lack of regard for the Rules of Court. Furthermore, the fact
that an
attorney was on maternity leave does not constitute
satisfactory explanation why a letter sent to the appellant’s
attorneys
was not received and why, in spite of having been alerted
to the fact that leave to appeal had been granted no further steps
were
taken to prosecute the appeal during this period.
[13]
As
to the
prospects
of success, the task of the
Labour
Court was to determine whether the decision reached by the
commissioner was one that a reasonable decision-maker could not
reach.
[7]
It found that the
commissioner’s findings fell within the ambit of reasonableness
required. The evidence on record does not
show that that finding was
wrong or that the employee’s misconduct, in failing to adhere
to an instruction of his superior,
was of such a degree that it
warranted dismissal rather than the application of progressive
discipline. Consequently, the Labour
Court’s decision to
dismiss the review application, having regard to the findings of the
commissioner, was not without foundation
and the prospects of success
in this appeal are limited.
The
importance of the matter is no more than a neutral factor given the
facts and any prejudice to be suffered by the appellant
were the
applications not to be granted is self-created given the unreasonable
and unacceptable delay in prosecuting this appeal.
[14]
For all these
reasons, the appellant has failed to make out a case for the relief
it seeks. Accordingly, the reinstatement and condonation
applications
must fail. Having regard to considerations of law and fairness, no
order of costs is made.
Order
[15]
In the result,
the following order is made:
1.
The application for reinstatement of the appeal is dismissed.
____________________
SAVAGE
AJA
Waglay
JP and Molefe AJA agree.
APPEARANCES:
FOR THE APPELLANT:
S Snyman
Snyman Attorneys
FOR THE THIRD
RESPONDENT:
B Mthimunye
Baphasile
Mthimunye Attorneys
[1]
Rule
5(17) states: ’If the appellant fails to lodge the record
within the prescribed period, the appellant will be deemed
to have
withdrawn the appeal, unless the appellant has within that period
applied to the respondent or the respondent's representative
for
consent to an extension of time and consent has been given. If
consent is refused the appellant may, after delivery to the
respondent of the notice of motion supported by affidavit, apply to
the Judge President in chambers for an extension of time.
The
application must be accompanied by proof of service on all other
parties. Any party wishing to oppose the grant of an extension
of
time may deliver an answering affidavit within 10 days of service on
such party of a copy of the application.’
[2]
Steenkamp
and Others v Edcon Limited
[2019] ZACC 17
;
2019 (7) BCLR 826
(CC); (2019) 40 ILJ 1731 (CC);
[2019] 11 BLLR 1189
(CC)
at
para 26, with reference to
Grootboom
v National Prosecuting Authority
[2013]
ZACC 37
;
2014
(2) SA 68
(CC);
2014
(1) BCLR 65
(CC)
at para 20.
[3]
Van
Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as
Amicus Curiae)
[2007]
ZACC 24
;
2008
(2) SA 472
(CC)
[2007] ZACC 24
; ;
2008
(4) BCLR 442
(CC)
at paras 20 and 22.
[4]
Brummer
v Gorfil Brothers Investments (Pty) Ltd
and
Others
[2000]
ZACC 3
;
2000
(2) SA 837
(CC);
2000
(5) BCLR 465
(CC)
at para 3.
[5]
1962
(4) SA 531
(A)
at 532C-F.
[6]
[2015]
ZACC 40
;
(2016) 37 ILJ 313 (CC);
2016
(3) BCLR 374
(CC)
at para 1.
[7]
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
(2007) 28
ILJ
2405
(CC) at para 110.