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2024
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[2024] ZALCJHB 193
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Motlout v Ramothata N.O and Others (JR931/23) [2024] ZALCJHB 193 (6 May 2024)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
No:
JR931/23
In
the matter between:
SAMUEL
MAKHONYA MOTLOUT
Applicant
and
GODFREY
RAMOTHATA
N.O.
First Respondent
COMMISSION
FOR CONCILIATION,
Second Respondent
MEDIATION
AND ARBITRATION
TSEBO
FACILITY SOLUTIONS
Third Respondent
Heard
:
In Chambers
Delivered
:
6 May 2024.
This judgment was handed down electronically by
emailing a copy to the parties. The 6
th
May 2024 is deemed
to be the date of delivery of this judgment.
Summary:
Application for leave to appeal. No prospects of success.
Application dismissed
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
DANIELS J
Introduction
[1]
For ease of reference the first respondent is referred to as “the
commissioner” and the second respondent will be referred
to as
"the CCMA”. The applicant seeks leave to appeal against
the order issued by this court on 27 February 2024 in
which it
dismissed the application to review and set aside the ruling by the
commissioner in which the commissioner dismissed the
application for
condonation of the late referral to the CCMA.
Background
facts
[2]
The applicant was employed by the third respondent as a technician.
[3]
On 1 October 2020 the third respondent advised the applicant that it
would have to reduce his salary by 50% because of financial
difficulties, presumably arising from the COVID19 pandemic and its
consequences. In addition, the applicant was advised that he
would no
longer be employed as a technician, but would be employed as an
artisan aid.
[4]
The applicant referred an unfair labour practice dispute to the CCMA
more than
sixteen months later
on 6 February 2022. He applied
for condonation more than
twelve months later
, on 22 February
2023.
[5]
On 20 March 2023, the commissioner issued a ruling dismissing the
applicant’s application for condonation.
[6]
To the extent that it is legible, the applicant’s explanation
for the lengthy delay is:
“
becose
(sic) I have being trying to talk to the HR and they told me to wait
cause (sic) they are investigating to the matter, so
I have to wait
and I feel like I have being waiting for long cause (sic) …responding
to my emails
”
[7]
The commissioner regarded the delay in making the referral as
excessive. The commissioner treated the referral as having been
properly made from the date when the applicant applied for
condonation on 22 February 2023.
[8]
On 9 June 2023, the CCMA notified the applicant that it had filed the
record with the Labour Court. It is unclear when, or if,
the
Registrar notified the applicant that the record of the proceedings
had been filed at the Labour Court.
Review
application
[9]
On 12 June 2023, the applicant filed a notice in terms of Rule
7A(8)(b) indicating he stands by the notice of motion and does not
intend to supplement his papers. Thereafter, despite its earlier
notice that it would not supplement its papers, the applicant
filed a
supplementary affidavit.
[10]
In its supplementary affidavit, the applicant offered up facts and
details which were not before the commissioner. It goes without
saying that the court cannot take these facts into account. In any
event, all these facts demonstrate is that the applicant followed
up
with Human Resources, regarding his grievance, during November and
December 2022.
[11]
In his review application, the applicant contended that:
11.1
The commissioner failed to apply his mind properly,
11.2
The commissioner’s decision was unreadable (sic),
11.3
The commissioner had regard to a letter dated 1 October 2020 from the
employer, without permitting the applicant an opportunity
to respond.
[12]
In addition, in the review, the applicant contended that the dispute
was only referred to the CCMA two months and 29 days late.
This was
clearly incorrect when the applicant himself stated in the referral
form that the dispute arose when his salary was cut
during October
2020.
[13]
The referral to the CCMA was made on 6 February 2022 but condonation
was only applied for on 22 February 2023.
[14]
In his condonation application, the applicant basically offers a
single line explanation – he was waiting for management
to
respond to his grievance.
Legal
analysis
Leave
to appeal
[15]
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)
[16]
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:
‘
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
.’
[17]
The applicant has, rather dismally, failed to advance a proper basis
for leave to appeal.
[18]
In his written submissions seeking leave to appeal, the applicant
contends, for the first time, that the unfair labour practice
was
continuing and condonation is either not required or the referral was
only 25 days late. This is inappropriate, and I do not
accept the
submission. The applicant was required to make its case for
condonation, in its founding affidavit, when it applied
for
condonation. It cannot be permitted to shift the goal posts in this
manner.
Condonation
application before CCMA
[19]
The
decision in
Melane
v Santam Insurance Co (Pty) Ltd
[3]
is
generally regarded as the
locus
classicus
on condonation. Holmes JA held as follows:
“
In
deciding whether sufficient cause has been shown, the basic principle
is that
the
court has a discretion, to be exercised judicially upon a
consideration of all the facts, and in essence it is a matter of
fairness to both sides
.
Among the facts usually relevant are the degree of lateness, the
explanation therefore, the prospects of success, and the importance
of the case.
Ordinarily
these facts are interrelated: they are not individually decisive for
that would be a piecemeal approach incompatible
with a true
discretion
.”
[4]
(Own emphasis)
[20]
Accordingly, the test for condonation involves a weighing up of all
the relevant facts, so that, for example, a good explanation
for the
delay may compensate for weaker prospects of success.
[21]
Our courts
have repeatedly endorsed the principle that “
in
the absence of a full and reasonable (acceptable) explanation for the
delay, the prospects are immaterial, and
if
there are no prospects of success the application for condonation
should be refused even if there is a good explanation for the
delay
.”
[5]
[22]
In
Grootboom
v NPA and another
[6]
the
Constitutional Court held that the primary criterion is the
“interests of justice” which was explained as follows:
“…
the
standard for considering an application for condonation is the
interests of justice. However, the concept “interests of
justice” is so elastic that it is not capable of precise
definition. As the two cases demonstrate, it includes:
the
nature of the relief sought; the
extent and cause of the
delay
; the effect of the delay on the administration of
justice and other litigants;
the reasonableness of the
explanation for the delay;
the importance of the issue to
be raised in the intended appeal;
and the prospects of
success. It is crucial to reiterate that both Brummer and Van Wyk
emphasise that the ultimate determination
of what is in the interests
of justice must reflect due regard to all the relevant factors but it
is not necessarily limited to
those mentioned above. The particular
circumstances of each case will determine which of these factors are
relevant
.” (Own emphasis)
[23]
In this matter, the delay is so extensive and the explanation so
deficient that it amounts to no explanation at all. On the
authorities,
the prospects of success are immaterial where there is
no explanation for the delay. Here, explanation was so deficient that
it
amounted to no explanation at all. In the circumstances, there is
no need to consider prospects of success.
Conclusion
[24]
In the result, the application for leave to appeal
is dismissed.
RN 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]
1962 (4) SA 531
(A) at 532C-D
[4]
At 532C-D. This test has been repeatedly endorsed by our courts.
[5]
NUM v
Council for Mineral Technology
(1998)
3 LCD 448 (LAC);
Chetty
v Baker McKenzie
(2022)
43 ILJ 1599 (LAC) at para 10
[6]
(2014) 35 ILJ 121 (CC)