About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2011
>>
[2011] ZALCJHB 277
|
|
Global Parts v Maltji (JR1371/09) [2011] ZALCJHB 277 (9 September 2011)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
case
no:
JR
1371/09
In
the matter between:
GLOBAL
PARTS
Applicant
and
CHRISTOPHER
MALTJI
Respondent
Heard
:
09 September 2011
Delivered
:
09 September 2011
Edited:
11 September 2018
EX TEMPORE
JUDGMENT
MOSHOANA,
AJ
[1]
This is an application for review of a ruling issued by the second
respondent which award was issued on the 10
th
day of
December 2008. Before I deal with the main judgment I take this
opportunity to express the displeasure of the court in respect
of
this application. I had indicated to both representatives that the
papers are in shambles and the pagination is not in order.
Ordinarily
I would have just struck off this matter from the roll. However, this
matter was at some stage struck off the roll by
my brother Francis J
and as to how it subsequently came to the court roll without any
explanation why the matter should be re-enrolled,
I have no idea. In
any event I am seized with the matter today.
[2]
I also indicated that I am very reluctant to hear the matter on those
basis, but owing to the fact that this is an old dispute
and one
issue would be dispositive of the entire matter, I deemed it
appropriate to nonetheless allow the applicant, who today
appears
through an advocate, to make submissions why the court should
entertain this application and secondly why should the court
having
entertained the application grant the relief sought, that is, review
and set aside of the ruling.
[3]
The brief facts of this matter relevant to this application are as
follows. The applicant, Motolo Christopher Malatji an employee
of the
first respondent was dismissed on the 27
th
of February
2007 for incapacity. Following his dismissal, it is apparent that,
the applicant sought to challenge the fairness of
his dismissal and
that led to the matter being conciliated upon it remained unresolved
and was then referred to arbitration.
[4]
On the 3
rd
of September 2007 the arbitration hearing was
to sit. It is common cause that on that day the applicant was
absent. As a
result, the arbitrator, who was appointed, then
dismissed the referral as it were. The applicant then became aware of
the dismissal
on the 15
th
of September 2007. On 30
December 2007 he engaged a set of attorneys in order to advise him
and/or assist him.
[5]
In June 2008 he engaged yet another set of attorneys to advise and/or
assist him further. In October 2008, a rescission
application
was filed with the third respondent, being the DRC. As it were, the
rescission application was filed out of time and
there was no
condonation application for the late filing of the rescission
application. It was pointed out to this court by Mr
Posthumous
appearing for the first respondent, that there was an oral
condonation application. Nonetheless, and in brief, the applicant
pointed out that for some period he was indisposed and had to receive
some medical attention through a Sangoma. Secondly he put
the entire
blame of his case not proceeding to the set of attorneys who were
instructed.
[6]
The second respondent, after having heard the application for
condonation, gave what appears to be a very extensive ruling and
refused to condone the late filing and dismissed the rescission
application.
[7]
The applicant was aggrieved thereby and the only route available to
him was to bring an application for the review of the rescission
ruling. Such an application was filed but four months out of time. In
terms of Section 145 of the Labour Relations Act a review
should be
brought within a six weeks period. Section 158(1)(g) which ordinarily
is used to review rescission rulings does not set
out the six weeks
period, however there has been judgments of this court and the Labour
Appeal Court to the effect that the six
weeks period also applies in
respect of Section 158(1)(g). So, to that extent, the applicant
required condonation before this court
can hear the application for
review.
[8]
I may just point out that the first respondent in opposing the
application for review amongst others raised as a point in limine
to
the effect that the application for review is defective since it has
been filed outside the six weeks period. It does appear
to me that
the applicant knew that his legal representatives did nothing in
order to correct the situation, that is to bring an
application for
condonation.
[9]
On the 1
st
of September 2009, this matter appeared before
my brother Cele J, who granted the applicant leave to amend his
papers and where
necessary to set out the grounds upon which the
ruling is being attacked. It does seem that nothing was done in
that respect
until the matter was enrolled on the 2
nd
of
September 2010 and as I have already pointed out earlier was then
struck off.
[10]
Now with that background there is only one issue that the court has
to determine, which issue is dispositive of this matter,
and that is,
is there a proper condonation application before court? Simple answer
thereto, is that there is no proper application
as the one before
court is defective. The court can only exercise its reviewing powers
in terms of the enabling statute and late
filing of review
applications is a ground upon which this court can refuse to exercise
jurisdiction.
[11]
It is most telling, that much as the applicant may have been without
assistance, as Mr Shaw indicated to me that Mr Mashishi
attorneys was
only briefed around, almost six months ago. Fact is, the fact that
the condonation application is required had been
highlighted in the
papers. I am not sure how Mashishi attorneys when taking instructions
and considering the papers and noticing
that there is a point
in
limine
about the lack of condonation, what did they do?
[12]
Nonetheless, I cannot comment further in that regard. So it is only
on those basis that this court, if there is a proper application,
is
entitled to hear the review application. However, I may add that even
if the court were to hear this matter, without the condonation
application, assuming that it is possible, I asked Mr Shaw appearing
for the applicant as to what the grounds are upon which this
ruling
should be reviewed. He was unable to point to me to any of the
grounds. It ought to be remembered that my brother Cele J
has already
indicated to the applicant that his application as it stood then did
not set out the grounds and the applicant was
afforded an opportunity
to set out those grounds but almost two years later, I cannot be
shown any grounds.
[13]
Now, even if, as I indicated, I were to hear this application there
are no grounds. Therefore, there is no basis upon which
this court
can fault a ruling, that appears to be detailed, by the second
respondent.
[14]
In the circumstances I am making the following order:
Order
1. The application for review is
dismissed.
2. I make no order as to costs
.
_______________________
GN Moshoana,
Acting
Judge of the Labour Court of South Africa