About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2024
>>
[2024] ZALCJHB 161
|
|
Maremane v Polokwane Local Municipality and Others (JR2368/22) [2024] ZALCJHB 161 (12 April 2024)
THE
LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
(POLOKWANE)
case
No:
JR
2368/22
In
the matter between:
JOSEPH
LEONARD MAREMANE
Applicant
and
POLOKWANE
LOCAL
MUNICIPALITY
f
irst
Respondent
SOUTH
AFRICAN LOCAL GOVERNMENT
Second Respondent
BARGAINING
COUNCIL
MS
RANTHO,
N
Third Respondent
Heard
:
Considered in
Chambers
Delivered
:
This judgment was handed down
electronically by emailing a copy to the parties. 12 April 2024 is
deemed to be the date of delivery
of this judgment.
Summary:
Application for leave
to appeal against judgment handed down on 15 February 2024. Decided
in chambers. The application for leave
to appeal is dismissed.
JUDGMENT
DANIELS
J
Introduction
[1]
The
applicant seeks leave to appeal against the judgment of this court
dismissing its application to reinstate a review application,
which
was deemed to be withdrawn in accordance with clauses 11.2.2 and
11.2.3 of the Practice Manual.
Legal
Principles: Leave to Appeal.
[2]
In
J
& L Lining (Pty) Ltd v National Union of Metalworkers of SA and
Others (2)
[1]
this Court summarized the legal position when seeking leave to appeal
as follows:
‘
Leave
to appeal is not there for the asking
. When deciding
whether to grant leave to appeal to the Labour Appeal Court, the
Labour Court must determine
whether there is a reasonable
prospect that another court would come to a different conclusion to
that of the court a quo,
or in other words, whether the
appeal would have a reasonable prospect of success. This was
summarised in SA Clothing & Textile
Workers Union & others v
Stephead Military Headwear CC, as follows:
‘
It
is trite that for an application for leave to appeal to be
successful, it is required of the party seeking such leave to
demonstrate
that there are reasonable prospects that another court,
in this instance, the
Labour
Appeal Court, would come to a different conclusion to that reached in
the judgment
that is sought
to be taken on appeal
.’’
(Own emphasis)
[3]
As
to the meaning of ‘reasonable prospects of success’, the
Court in
Member
of the Executive Council for Health, Eastern Cape v Mkhitha and
Another
[2]
said the following:
‘
Once
again it is necessary to say that leave to appeal, especially to this
Court, must not be granted
unless
there truly is a reasonable prospect of success
.
Section 17(1)(a)
of the
Superior Courts Act 10 of 2013
makes it clear
that leave to appeal may only be given where the
judge
concerned is of the opinion that the appeal would have a reasonable
prospect of success; or there is some other compelling
reason why it
should be heard.
An
applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or
realistic
chance of success
on appeal.
A mere possibility of success,
an arguable case or one that is not hopeless, is not enough
.
There must be a
sound,
rational basis to conclude that there is a reasonable prospect of
success
on appeal
.’
Legal
Principles: Practice Manual
[4]
It
is trite that the Practice Manual is binding. It is also trite that,
where a review is deemed to be withdrawn in terms of the
Practice
Manual, it may be reinstated via a substantive application
demonstrating good cause.
In
Samuels
v Old Mutual Bank
[3]
‘good cause’ was described by the LAC as follows:
‘
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, time frames and directives.
Showing good cause demands that the
application be bona
fide; that the applicant provides 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
.’
[5]
In
NEHAWU
on behalf of Mofokeng and others v Charlotte Theron Children’s
Home
[4]
in relation to condonation, the LAC held that, without a reasonable
and acceptable explanation for a delay, the prospects of success
are
immaterial. This court found that there was no adequate explanation
for the delay, and, in addition, there were no reasonable
prospects
of success in the review itself.
[6]
When
seeking condonation, the applicant must set out a sufficiently full
and adequate explanation – not a vague or general
one.
[5]
There should be an explanation for each period of the delay. This
court found that significant periods were unexplained.
Grounds
for the application for leave to appeal.
[7]
The
applicant contends that this court failed to have regard to the true
duration of the delay in the filing of the record. With
respect, I do
not understand how this submission is made in light of the following:
7.1.1
In
paragraph 48 of its founding affidavit, the applicant alleged that
its attorneys were notified by the Registrar that the arbitration
record had been filed on 27 October 2022.
7.1.2
The
60 days period in clauses 11.2.2 and 11.2.3 therefore expired on 23
January 2023, when the review was deemed to have been withdrawn.
7.1.3
The
applicant states that the record was filed approximately two months
late.
7.1.4
In
its founding affidavit, the applicant provides no explanation as to
what steps it took between 27 October and 8 December 2022
to prepare
and file the arbitration record.
[8]
As
explained above, there must be a sufficiently full explanation for
each period of the delay. Despite this, the applicant provided
no
explanation for a period of over a month. There is no prospect that
the LAC will find that the applicant has provided a reasonable
explanation for the delay when a period of more than a month remains
unexplained.
[9]
The
applicant maintains that it has reasonable prospects of success in
the review because the arbitrator irregularly admitted hearsay
evidence (relating to the evidence at the disciplinary hearing) and
refused to allow him to call witnesses. I cannot see how another
court would possibly accept this submission. The arbitrator’s
interlocutory ruling on hearsay evidence was comprehensive,
and he
exercised his discretion after consideration of all the factors in
section 3(1)(c) of the Law of Evidence Amendment Act.
In this regard:
9.1
The
arbitrator took into consideration that the disciplinary hearing was
concluded
more than ten (10) years
ago
- on 29 February 2012, after
which the applicant was dismissed.
9.2
At
the disciplinary hearing, the applicant brought legal proceedings
against the employer’s principal witness, the municipal
manager, alleging that she was defaming him.
9.3
When
the matter was scheduled for arbitration at the end of March 2022
(more than 10 years after the disciplinary) an impromptu
application
was made by the respondent to admit all the evidence from the
disciplinary hearing.
9.4
The
employer’s witnesses were afraid to testify for fear that this
would lead to legal action against them.
9.5
The
arbitrator required a formal application to admit the hearsay
evidence and allowed the parties an opportunity to argue such
application.
9.6
At
the disciplinary hearing, the parties were legally represented, the
witnesses were robustly cross examined, and the evidence
was
mechanically recorded and transcribed.
[10]
Section
138(1) of the Labour Relations Act No. 66 of 1995 (the LRA”)
requires the commissioner to conduct the arbitration
with the minimum
of legal formalities. Section 138(2) grants the commissioner a
discretion as to the form of the arbitration. This
approach is
necessary to achieve one of the prime objects of the LRA –
expeditious dispute resolution.
[11]
In
its application for leave to appeal, the applicant raises other
issues of no moment. The real issue in the review application
was the
alleged improper admission of hearsay evidence at the arbitration.
Nevertheless, for the sake of completeness, these side
issues are
considered:
11.1
The
applicant alleges that this court erred when it found that the
employer
applied
to admit evidence of a hearsay nature (record of the internal
disciplinary hearing). The court relied on paragraph 21 of the
applicant’s
founding affidavit which stated: “
The
municipality then filed an application to use the record of the
disciplinary proceedings and the record of the arbitration
proceedings as the full and final record for the purpose of the
arbitration
.” This point is
clearly without merit.
11.2
The
applicant alleges that this court erred in finding that he had been
found guilty of charge 1.2(c). Nothing turns on this. It
is correct
that the arbitrator found the applicant guilty of charges 1.2(a) and
1.2(b) and made no reference to charge 1.2(c).
The applicant was
found guilty of charges that he was grossly dishonest - because he
applied for annual leave to frustrate the
Portfolio Committee
meeting, and he gave Councillor Kaka the wrong impression that he
would prepare for and attend the Portfolio
Committee meeting. These
were serious charges, for which he was found guilty and dismissed.
11.3
The
applicant alleges that this court erred by stating that an audit
report
found
that the applicant had received a payment of R 600 000, 00 from a
building contractor who whose building plans had not been approved.
As explained, this is without merit:
11.3.1
The
court relied on what was stated in paragraph 16.1 of the founding
affidavit to the effect such evidence had been presented at
arbitration. This appeared from the review papers too.
11.3.2
More
importantly, this issue (referred to in the section dealing with
background facts) played no role in any determination of the
prospects of success on review. It was common cause that the
applicant was not charged or dismissed for the allegations that he
was irregularly paid R600 000, 00.
11.4
It
is alleged that the court erred by failing to consider that the
Portfolio Committee meeting of 13 December (which the applicant
failed to attend) was only scheduled on 10 December – and the
employee applied for leave on 3 December. This was no error.
The
arbitration award recorded the evidence of Mr. Powell, who denied
that the meeting was arranged on 10 December. The applicant’s
version was, in any event, a highly unlikely.
[12]
In
the result the application for leave to appeal is dismissed. There is
no order as to costs.
R
Daniels
Judge
of the Labour Court of South Africa
[1]
(2019) 40 ILJ 1303 (LC) at para 5.
[2]
[2016] JOL 36940
(SCA) at paras 16 – 17.
[3]
(2017) 38 ILJ 1790 (LAC)
[4]
(2004) 25 ILJ 2195 (LAC) at para 23
[5]
MEC
for the Department of Cooperative Governance &
Traditional
Affairs,
KwaZulu-Natal v Nkandla Local Municipality & others
(2022) 43 ILJ 505 (CC) at para 66