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[2015] ZALAC 80
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CENTRAL UNIVERSITY OF TECHNOLOGY v Morgan (JA 89/2013) [2015] ZALAC 80 (16 July 2015)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Case
no: JA 89/2013
In the matter between:
CENTRAL UNIVERSITY OF TECHNOLOGY
FREE
STATE
Appellant
and
NICHOLAS
ISMAEL MORGAN
Respondent
JUDGMENT
WAGLAY
JP
Introduction
[1] On 10 March 2015,
this Court handed down the following order:
(i) This matter is struck
off the roll with costs.
(ii) The costs aforesaid
are to be paid by the appellant’s attorneys
de bonis
propriis
unless this Court on representations made by the said
attorneys within seven days of the date of this order reviews the
said order
of costs.
[2] The appellant’s
attorneys have duly made representations to review the said order of
costs and this judgment relates thereto.
Background
[3] The appeal in this
matter was deemed to have been withdrawn because of the appellant’s
failure to file the appeal record
within the period prescribed in
terms of the Rules that govern proceedings in the Labour Appeal Court
(“Rules”).
[4]
In terms of
the Rules, an appellant must file its record of appeal within 60 days
of leave to appeal being granted or such other
period as may be
prescribed.
[1]
The Rules further
provide that if the appellant is unable to file its record within the
prescribed time period: (i) it can file
the record after the
prescribed period provided that the respondent has agreed to extend
the prescribed period and the record is
filed within the period
consented to by the respondent. (ii) Where the respondent fails to
consent to an extension of time, the
appellant must by way of a
notice of motion supported by affidavit apply to the Judge President
of this Court for an extension
of time to file its record. The
application must be served on the respondent who may file an
answering affidavit in opposition.
The Judge President will then
consider the application in chambers. In determining the matter, the
Judge President will look at
the reasons why the appellant will not
be able to file the record timeously. The Judge President may then
grant an extension of
the time limit within which the appellant must
file its record.
[2]
[5]
In the
absence of an extension either by the respondent or the Judge
President and the time period within which the appellant is
obliged
to file its record has lapsed then, in terms of the Rules, the appeal
is deemed to be withdrawn.
[3]
The appellant is nonetheless entitled to file its record after the
prescribed period and seek to reinstate the appeal.
[6]
In order to
reinstate the appeal, the appellant must, and, this has been done
since this Labour Appeal Court has come into existence,
bring an
application to reinstate the appeal. Where the record is filed
albeit
out of time and an application to reinstate the appeal is made, the
Registrar will allocate for hearing the application for reinstatement
of the appeal together with the appeal. This is so because one of the
factors to consider in granting or refusing the reinstatement
of the
appeal is the merits of the appeal itself. Hence if the application
for reinstatement is granted or refused the appeal is
dealt with at
the same time.
[7]
In this
matter, the appellant failed to file its record timeously. It failed
to obtain consent from the respondent prior to the
expiration of the
period prescribed by the Rules to file its record nor did it make an
application to the Judge President for an
extension of the prescribed
period prior to its expiration. Having its appeal deemed to have been
withdrawn, the appellant then
filed its record and launched an
application to reinstate the appeal.
[8]
The
respondent in opposing the application for reinstatement raised the
point that the appellant had followed the wrong procedure
and that it
was obliged to make an application to the Judge President to grant an
extension to the time limit and not apply to
reinstate the appeal.
The appellant allowed itself to be guided by the respondent and
instead of persisting with its application
effectively
withdrew/substituted its application for reinstatement of the appeal
with an application to the Judge President in
terms of Rule 5(17) for
an extension of time within which to file the record which had by
then been filed.
[9]
A proper
reading of the Rules would have alerted the attorneys that only where
the appellant is unable to file its record on time
must an
application be made to the Judge President for an extension. This
clearly means it must be done before the time period
for filing the
record has prescribed because the Judge President cannot extend the
time frame to file a record in an appeal which
has already deemed to
be withdrawn.
[10]
In the
absence of an application before the Court to reinstate the appeal,
it could not be entertained. What is of greater concern
is the
failure on the part of the legal representatives; here I include both
counsel, not only for failing to appreciate what the
Rules actually
say but also for failing to consult case law to establish the route
it should follow. The respondent’s legal
representatives appear
to be equally culpable for the course followed by the appellant.
[11]
For the
above reasons, I am satisfied that the order of 10 March 2015 be set
aside and replaced with the following:
The matter is struck from the roll
with costs to stand over for determination at the appeal hearing.
Dated 16 July 2015
Waglay
JP
I
agree
Davis
JA
I
agree
Mngqibisa-Thusi
AJA
APPEARANCES:
FOR
THE APPELLANT:
Bruce Blair of
Blair Attorneys
FOR
THE RESPONDENT:
Adv M C Louw
Instructed by Horn &
Van Rensburg Attorneys
[1]
Rule 5(8) of the Rules
reads 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, in which case
the record must be delivered
within the period fixed by the court
under rule 4(9).”
[2]
Rule 5(17) of the Rules
reads 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 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.”
[3]
Rule 5(17) of the Rules.