About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2012
>>
[2012] ZALAC 19
|
|
Kerradam Properties (Pty) Ltd t/a Cabanga Conference Centre v Matthee (JA 72/2010) [2012] ZALAC 19 (22 June 2012)
7
REPUBLIC OF SOUTH AFRICA
THE LABOUR APPEAL COURT OF SOUTH
AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JA 72/2010
KERRADAM PROPERTIES (PTY) LTD
t/a CABANGA CONFERENCE CENTRE
….....................................................
Appellant
and
SONICA MATTHEE
…..................................................................................
Respondent
Heard: 29 May 2012
Decided: 22 June 2012
Summary: Practice and procedure-
Appeals- Rules 5(17)- appeal lapsed. Application for condonation and
reinstatement of appeal- several
non-compliances with the Rules by
the appellant- reckless disregard of the Rules- not in the interests
of justice to grant condonation-
doing so would send a wrong message
to the public- Application dismissed with costs.
JUDGMENT
___________________________________________________________________
TLALETSI JA
Introduction
[1] The appellant was granted leave to
appeal against the judgment of the Labour Court (per Bhoola J) on 26
October 2010. In terms
of Rule 5(8),
1
the appellant was obliged to deliver
the record of the proceedings in the Labour Court within 60 days of
the date of the order granting
leave.
[2] Rule 5(17) provides that 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to have withdrawn the appeal unless the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 and obtained consent to an
extension of time from
the respondent or its representative. In the
event that the consent to extension of time is refused, the appellant
may apply to
the Judge President in chambers for extension of time
after service of the appellant’s Notice of Motion accompanied
by an
affidavit in support of that request on the respondent.
[3] In this case the appellant only
served the record of the proceedings in the Labour Court on 8 March
2011 which was out of time
by 23 days. The legal effect of the
appellants failure to file the record within the prescribed period is
that the appeal has lapsed
and as such there is no appeal before this
court. See
Goldfields Trust
(Pty) Ltd and Another v Stander and Others.
2
[4] On 07 May 2012, the appellant
filed an application in terms whereof he is seeking an order that the
appeal be reinstated; that
the late prosecution of the appeal be
condoned and that the appellant pay the costs of the application. In
order for the appellant
to succeed with his application, it has to
show that there has been procedural compliance with the provisions of
Rule 5(17) and
further show good cause. In considering the
application, the court would take into account the extent of the
delay, the explanation
therefor, prejudice to the parties and where
necessary whether the appellant has good prospects of success on the
merits of the
appeal. The final factor to be considered is whether it
is in the interest of justice to grant the condonation sought.
[5] This Court had an opportunity to
consider the approach to be adopted in applications of this nature in
SA Post Office Ltd
v
CCMA and Others:.
3
:
‘
The
degree of delay and the reason therefore complement each other. While
the degree of delay is a mere arithmetical calculation,
it is
significant in relation to the expeditiousness with which the matter
was required to be resolved. Hence, in matters where
importance is
placed upon the speedy and expeditious resolution of a dispute, even
a short delay may not be excusable unless an
explanation is provided
that sets out the reasons for the delay which the court finds
acceptable. With the factor of delay, go
the prospects of success.
Where it is evident that the party seeking condonation has no
prospects of succeeding in its principal
claim or opposition, no
purpose is served in granting condonation and the court must in such
circumstance refuse to grant condonation
irrespective of the degree
or explanation provided. Where the prospects of success are
reasonably good or even fair then, depending
on the delay and the
explanation, consideration must be given to the prejudice that the
parties may suffer before the discretion
can be exercised on whether
to grant the indulgence sought. The factor of prejudice plays a role
only when the delay is substantial.’
The Court held further that there
would be instances where a dispute evinces such miscarriage of
justice that it cries out for interference
by the court.
4
Similarly, there will be cases where
it would not be in the interest of justice to grant condonation
despite there being reasonable
prospects of success.
[6] In the founding affidavit in
support of this application, appellant has made bare statements that:
it has a reasonable and
bona fide
explanation for the late
service and filing of the record; that it has reasonable prospects of
success on appeal; the delay in
having filed the record is not
inordinate and that the appellant will be prejudiced if the appeal is
not reinstated. The appellant
then attached copies of letters it
exchanged with the transcribers without explaining in detail what
transpired. It left it to
this Court to discern from the contents of
the letters what transpired. I found this approach to be improper to
seek an indulgence
from the court for Condonation as it is not there
for taking. It is for the applicant to make out a case for such an
order.
[7] On 19 November 2010, the
appellant’s attorney wrote to I Africa Transcriptions (Pty)
Limited (“the transcribers”)
and requested a quotation
with regard to the preparation of the appeal record. On 22 November
2010, the transcribers replied by
advising that they have made
arrangements to obtain the relevant court file to enable them to
provide a quotation. On 01 December
2010, the transcribers wrote to
the appellant’s attorneys, and advised,
inter alia
, that
the costs of preparation of the record is R8 800-00 and that they
request a deposit of R5 900-00 before they could proceed
with the
preparation of the record.
[8] About nine days later, on 09
December 2010, the appellant’s attorneys reported to the
transcribers that they have deposited
the requested amount of R5
900-00 and requested that the record be prepared. There is no
indication as to what happened from 09
December 2010 until the
transcribers responded on 10 February 2011 by sending a Tax Invoice
requesting the balance due and advising
that the record was ready for
collection. It would appear that the appellant’s attorneys sat
back for almost two months and
waited for the transcribers. The
record was ultimately served and filed on 08 March 2011.
[9] There is no explanation from the
appellant as to what transpired from 10 February 2011 for the record
to be only lodged on 08
March 2011. It does not allege that the
respondent was requested to consent to extension of time for the
record to be lodged out
of time. What complicates the appellant’s
case further is that there is no explanation why the application for
reinstatement
of the appeal was only made on 07 May 2012 which is a
period of more than sixteen (16) months from the expiry of 60 days.
[10] It is evident from the record
that there had been several non-compliances with the Rules of this
Court by the appellant. The
correspondence referred to above show
that the appellant was not going to be able to lodge the record
within the prescribed time.
It was required of the appellant to
approach the respondent for consent to extension of time. It failed
to do so. No explanation
for that is provided. The second option
available to comply with the Rule, was to apply to the Judge
President in chambers on notice
to the respondent, for extension of
time. The appellant failed to do so and there is also no explanation
provided for its failure
to do so.
[11] At the time when the record was
filed, the appellant knew or his attorney ought to have known that
the appeal had already lapsed.
Instead, this state of affairs was
ignored and the record was nevertheless filed. The filing of the
record could not have had the
effect of wishing away the deeming
provision which was triggered in to operation by non compliance.
[12] The record of the proceedings was
available from 10 February 2011 and the outstanding balance of the
amount of R2925-42 was
paid on 11 February 2011. It appears nothing
was done from 11 February 2011 other than to send a memorandum to the
attorney’s
messenger on 22 February 2011 with instructions to
file the record. Eleven days went by without any action being taken.
From 22
February it took another 15 days to lodge the record. There
is no explanation as to what transpired during that period.
[13] The appellant filed its Heads of
Argument for the appeal that had already lapsed on 13 April 2011. In
these Heads of Argument,
it chose to ignore the fact that the appeal
had lapsed and said nothing about this fact. It was only the
respondent who raised
the matter as a point
in limine
in her
Heads of Argument filed on 13 April 2011. The point
in limine
raised was to the effect that the appeal had lapsed and that there
was no application for condonation or extension of time filed
by the
appellant. The order sought by the respondent was that this Court
should not entertain the matter.
[14] Even if one was to assume that
the appellant or its attorney knew nothing about the rules of this
Court, which would be unfortunate,
the respondent’s attorneys
notified them by means of a point
in
limine
that the appeal had
lapsed. It took the appellant almost a year to file the application
for condonation and reinstatement of the
appeal. It was incumbent on
to lodge this application immediately it was made aware of the non
compliance with the rules. See
Lumka
and Associates
v
Maqubela.
5
[15]There is still to date no
explanation why this application was only launched a year later. I
find this conduct to be a reckless
disregard of the Rules of this
Court. I Furthermore there is nothing exceptional in this case that
warrant granting condonation
in the interests of justice. The issue
on appeal is against the finding of the Labour Court that the
dismissal of the respondent
by the appellant was substantively fair
but procedurally unfair and its order of compensation equivalent to
twelve months remuneration
plus costs in favour of the respondents.
The prospects of success on the merits, if any, are by far outweighed
by the reckless
conduct on the part of the appellant. Granting
condonation for non compliances in the circumstances of this case
would send a wrong
message to the public. The application for
condonation and reinstatement of the appeal falls to be dismissed
with costs.
[16] In the result, the following
order is made:
“
The
application for condonation and reinstatement of the appeal is
dismissed with costs”.
___________________
TLALETSI JA
Judge of the Labour Appeal Court
Waglay AJP and Davis JA concur in the
judgment of Tlaletsi JA
Appearances:
For the appellant : Adv
L. Hollander
Instructed by : Anthony
Hinds Attorneys
For the respondent : Adv.
C Bruwer
Instructed by : Vogel
Malan Attorneys
1
Rules
Regulating the Conduct of the Proceedings of the Labour Appeal
Court.
2
[2002]
BLLR 797
(LAC) at para 6 - 8.
3
(2011)
32 ILJ 2442 (LAC) at para 18.
4
Nehawu
obo
Mofokeng
and others
v
Charlotte
Theron Children’s Home
(2004) 25
ILJ 2195;
[2004] 10 BLLR 979
(LAC) at para 26 - 27.
5
(2004)
25 ILJ 2326 (LAC) at paras 34-38