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2024
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[2024] ZALCJHB 149
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In Chambers Limpopo Provincial Department of Sports, Arts and Culture v Kola and Others (J 889/2022; JR 1823/2022) [2024] ZALCJHB 149 (28 March 2024)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: J 889/2022
JR 1823/2022
In
the matter between:
IN
CHAMBERS
LIMPOPO
PROVINCIAL DEPARTMENT OF
SPORTS,
ARTS AND CULTURE
Applicant
and
KHOLOFELO
KOLA AND 62 OTHERS
Respondents
In
re:
KHOLOFELO
KOLA AND 62 OTHERS
Applicants
and
LIMPOPO
PROVINCIAL DEPARTMENT OF
SPORT,
ARTS AND CULTURE
First Respondent
RAMOKGOPA,
MAPULA DAPHNE
N.O.
Second Respondent
MASENYA, THABO
N.O
Third
Respondent
Delivered:
28 March 2024
(This
judgment was handed down electronically by circulation to the
parties’ legal representatives, by email, publication
on the
Labour Court’s website and released to SAFLI.)
RULING: APPLICATION
FOR LEAVE TO APPEAL
VAN NIEKERK, J
[1]
The applicant seeks leave to appeal against a judgment delivered by
this court on
14 April 2023. In its judgment, the court dismissed an
application to condone the late filing of an application to review
and set
aside an arbitration award issued in favour of the
respondents, and dismissed the review application, with costs. The
underlying
arbitration award is one in which the respondents were
awarded reinstatement as permanent employees of the applicant. The
application
for leave to appeal was delivered on 8 May 2023, by
email, outside of the prescribed period of 15 days. The original
documents
were filed on 14 August 2023, in breach of Rule 5(3).
Further, written submissions in support of the application for leave
to appeal
were filed only on 25 August 2023, in breach of clause 15.2
of the Practice Manual. Condonation for all of these failures to
comply
with the relevant time limits was condoned on 21 December
2023, on the basis that the applicant was afforded an opportunity to
deliver any additional submissions in support of the application by
no later than 29 January 2024. No further submissions were received.
[2]
The grounds for leave to appeal include averments to the effect that
the court erred
in finding that the applicant had failed to explain
the delay, and in refusing to consider what were submitted to be
reasonable
prospects of success.
[3]
The principles that are applicable where a party seeks an indulgence
from the court
(as the applicant did) are equally well-established.
The applicant must provide an explanation for the entire period of
default,
the applicant must have reasonable prospects of success in
the main application and the granting of condonation must be in the
interests of justice.
[4]
To the extent that the applicant submits that the court erred by
finding that the
applicant had proffered no explanation for the
delay, there is patently no merit in this submission. On the
contrary, the judgment
makes specific reference to the explanation
for delay and funds that the explanation was vague and unsatisfactory
and failed to
cover the whole period of the delay. There is thus no
merit in this ground of appeal. In so far as the applicant relies on
internal
administrative processes to explain the delay, on the
applicant’s own version, the state attorney placed itself on
record
only some two months after it was instructed to review the
award, the first consultation with counsel was held in circumstances
where the review application was already two months late, and where
no confirmatory affidavit was filed in support of what were
contended
to be internal challenges at the office of the state attorney.
[5]
In so far as the applicant submits that the court failed to have
proper regard to
its prospects of success, the allegation of
reasonable prospects of success cannot save a litigant from a
manifest failure to provide
a satisfactory explanation for its
failure to comply with prescribed time limits. The prospects of
success are not a stand-alone
factor; indeed, the LAC has made clear
that in the absence of a failure to satisfactorily explain an
excessive delay, the prospects
of success are immaterial (see
NUM
v Council for Mineral Technology
[1999} 3 BLLR 209
(LAC)).
[6]
Finally, to the extent that applicant seeks in its submissions in
support of the application
to submit a new ground of mootness and the
necessity to join the Treasury and/ or the national department to the
proceedings, this
not a ground of appeal foreshadowed in the
application for leave to appeal. It is not open to the applicant to
raise new grounds
for appeal in its written submissions. In any
event, the point is wholly devoid of substance. The only parties to
the arbitration
proceedings were the department (in its capacity as
employer) and the respondents (as employees claiming the status of
permanent
employment). At no point in either the arbitration
proceedings or in the proceedings before this court was the point of
non-joinder
taken. What remains at this stage is compliance with the
award issue by the arbitrator – no other processes are
necessary
in terms of any legislation or otherwise that trump the
provisions of the LRA. Further, the averment that the respondents
were
effectively employees of the national department stands in
direct contrast to a contrary averment made under oath in the review
application.
[7]
The test on appeal is
well-established – the
court
must determine whether the appeal would have a reasonable prospect of
success, or whether there is some other compelling reason
why the
appeal should be heard. There is no merit in any of the grounds for
appeal raised by the applicant and the application
stands to be
dismissed. For the purposes of Section 162, the requirements of the
law and fairness are best satisfied by an order
for costs in the
respondents’ favour. The respondents are individual employees
who have been denied the benefit of an arbitration
award issued in
their favour more than two years ago in circumstances where the
applicant has sought to frustrate the implementation
of that award at
every turn, with a failure by the applicant to file the review
timeously, to file the application for leave to
appeal and
submissions in support of that application within the prescribed time
limit. There is no reason to deny the respondents
the costs that they
have incurred in opposing this application.
I make the following
order:
1.
The application for
leave to appeal is dismissed, with costs.
Van Niekerk JA