About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Cape Town Labour Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Cape Town Labour Court, Cape Town
>>
2009
>>
[2009] ZALCCT 2
|
|
JAMAFO obo Nero v Pick 'n Pay (Pty) Ltd and Others (C81/07) [2009] ZALCCT 2 (5 March 2009)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD AT CAPE TOWN
NOT
REPORTABLE
CASE
NUMBER: C81/07
In the matter between:
JAMAFO obo FRANK
NERO Applicant
and
PICK
’N PAY (PTY) LTD
LTD
First
Respondent
VAN
STADEN NO,
PIET
Second
Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION AND
ARBITRATION
Third
Respondent
JUDGEMENT
NGALWANA
AJ
[1] This
is an application for leave to appeal against a judgement of this
Court dated 5 December 2008 in which
the applicant’
s
condonation application for the late filing of a review application
was dismissed on the basis of inadequate explanation for the
delay.
[2] The
first respondent abides by this Court’s decision.
[3] On
review, the applicant blamed its late application on the late receipt
of a rescission ruling. It had chosen
to proceed by way of section
144 of the Labour Relations Act, 66 of 1995 (and not by way of review
under section 145) to have the
award of the second respondent
rescinded (in contra-distinction to set aside on review). This was an
irrelevant consideration because
it was not the rescission ruling
that was sought to be set aside on review but rather the arbitration
award.
[4] Now
the applicant’s legal representative blames the union
representative for following a process that
he himself says “was
doomed to failure as it did not raise any recognised grounds under
section 144”. This unfavourable
post mortem notwithstanding, he
then submits that because this was “a step that a reasonable
litigant might take”,
the union representative’s
procedural indiscretion should not be a basis upon which to punish
the litigant.
[5] Well,
quite apart from the post mortem not justifying the conclusion now
being advanced, the Appellate Division
(as it then was) held a
different view. In
Fehr v Gordon and
Rennie NNO and Another
1988 (1) SA 125
(A) at 138A-D, Corbett JA (as he then was) said an election made on
the advice of one’s attorney cannot validly be vitiated
by
claims of a mistake on the part of the litigant. This decision was
followed in
IMATU and Others v MEC:
Environmental Affairs, Developmental Social Welfare and Health,
Northern Cape Province and Others
1999
(4) SA 267
(NC) at 281G-I where the Court said: “I am afraid,
the law is clear that a party is bound by his election even if it is
based
on wrong legal advice”. I am not aware of any subsequent
Appeal Court decision that deviates from the
Fehr
decision. The applicant cannot, in failing to bring a review
application within the period prescribed by the
Labour Relations Act
for
good reasons that have been documented in numerous reported
judgements, validly blame his legal representative for following a
process that was, by his own attorney’s reckoning, “doomed
to failure”.
[6] Having
considered the applicant’s submissions in this application, I
am satisfied that troubling the
Higher Court with this appeal would
be unpardonably churlish.
[7] The
application for leave to appeal is dismissed as there are no
reasonable prospects of a higher Court reaching
a conclusion that is
different from that reached by this Court on the submissions made to
it.
Ngalwana
AJ
Appearances
For
the applicant: Mr
J Whyte
Instructed
by: Cheadle
Thompson and Haysom
For
the first respondent: Mr A
Steenkamp
Instructed
by: Edward
Nathan Sonnenberg Inc
Date
of judgment: 05
March
2009