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
>>
2011
>>
[2011] ZALCCT 34
|
|
Silplat (Pty) Ltd v CCMA and Others (C 206/2006) [2011] ZALCCT 34 (31 March 2011)
Not reportable
Of interest to other judges
IN
THE LABOUR COURT OF South Africa
HELD
AT CAPE TOWN
case
no: C 206 / 2006
In the matter between:
SILPLAT
(PTY) LTD
….......................................................................
Applicant
and
CCMA
….................................................................................
First
respondent
Mr
VUYISWA MAZWI N.O.
…...........................................
Second
respondent
STEPHEN
MARINE
…...........................................................
Third
respondent
ruling on leave to appeal
STEENKAMP J:
Introduction
The applicant, Silplat (Pty) Ltd, seeks leave to appeal against my
judgement of 21 January 2011.
1
In my judgment, I made the following orders:
The application for condonation for the late filing of the review
application pertaining to the award of 3 December 2005 is
dismissed.
The application for condonation for the late filing of the rule 7A
notice is dismissed.
The application for review of the rescission ruling dated 2 March
2006 is dismissed.
The applicant is ordered to pay the third respondent's costs.
The applicant states that the application for leave to appeal
"focuses on the review of the rescission application".
It
is not entirely clear whether the applicant also seeks leave to
appeal against the orders in respect of condonation. I shall
assume,
for the sake of argument, that it seeks leave to appeal against the
whole of the judgement.
As the applicant points out in its heads of argument, a central
pillar in the judgment is the principal that there is a point
beyond
which the negligence of an attorney cannot be used by his client as
a ground or explanation in support of a rescission
or condonation
application. This is indeed so. What the applicant fails to mention,
is that I also pointed out specifically that
the company could not
blame only its attorneys for the delay. I pertinently addressed the
company's own negligence.
2
The test
I agree with the applicant that it is trite law that it needs to
demonstrate that there is a reasonable prospect that another
court
may come to a different finding with regard to the merits of the
proposed appeal.
In considering the ruling on condonation, the decision not to grant
it is a matter that falls within the court's discretion.
The
decision in this regard is not appealable simply on the basis that
another court could reasonably differ.
In
NUMSA v Fibre Flair cc t/a Kango Canopies
3
the Labour Appeal Court laid down in the applicable test. It is
whether or not it can be said that, in exercising its discretion,
the court
a quo
did so "capriciously, or upon a wrong
principle, or in a biased manner, or for insubstantial reasons, or
committed a misdirection
or irregularity, or failed to exercise
discretion, or exercised it improperly or unfairly."
This test was followed by the LAC in
Coates Bros Ltd v Shanker
and Ors
4
where it was also pointed out that a simple misdirection is
insufficient – "the misdirection must be of such a
nature,
degree or seriousness that shows that the court did not
exercise his discretion at all, or exercised it improperly or
unreasonably."
And in
Fibre Flair
, Willis JA pointed out that the fact that
the Labour Appeal Court might "in various instances have
reached a somewhat different
conclusion from the court
a quo
,
would not in itself justify a departure" from the "general
rule against interference" in regard to the exercise
of the
court’s discretion. This was because "policy reasons, in
particular the need for expeditious finality in labour
disputes"
militated against the Labour Appeal Court interfering with decisions
involving the exercise of a discretion.
In
A Hardrodt (SA) (Pty) Ltd v Behardien
5
the Labour Appeal Court restated the principles and noted that the
court has "an unfettered discretion to grant condonation
taking
into consideration all the circumstances of the case, including the
degree of lateness, the explanation therefor, the
prospects of
success on the merits and the importance of the case." In that
case, it was held that, given the degree of
remissness on the part
of the applicant's legal representatives, and, given that no
acceptable explanation for such remissness
and delay was given, it
was not necessary to even consider the prospects of success, and the
application for condonation was
rightly dismissed on this ground
alone.
Evaluation
With regard to the ruling on condonation, I am satisfied that I
properly considered all the relevant factors exercised a judicial
discretion not to grant condonation. As I stated above, I took into
account the excessive delay; the gross negligence and incompetence
of the applicants erstwhile attorneys; and the numerous instances
where the company itself had been remiss or dilatory, or had
failed
to give a satisfactory explanation.
Together with the applicant’s poor prospects of success in the
review application, I am satisfied that another court will
not come
to a different conclusion with regard to my rulings on condonation.
The review of the rescission application
Even if I were to grant condonation, I cannot see how another court
could come to a different conclusion on the merits.
In its application for leave to appeal, the applicant submits that I
have "overlooked" the fact that the applicant,
in its
founding affidavit in support of the application for rescission [
at
the CCMA
] made out a case in support of what it terms "a
bona fide
defence." But, as counsel for the third
respondent pointed out, that argument is disingenuous. In its
supplementary heads
of argument on review, the applicant stated that
its attack on the arbitration award was "limited to the
procedural finding."
With regard to substantive fairness,
therefore, the prospects that another court may come to another
finding is non-existent.
And I found that the applicant had no
prospects of success with regard to procedural unfairness, and set
out the reasons therefor.
6
The applicant further submits that I did not take into account "that
the arbitrator completely failed to consider the applicant’s
explanation for the failure to appear at the arbitration". That
is not correct. In my judgement, I set out in detail why
the
arbitrator decided to proceed with the arbitration in circumstances
where the company was in default.
7
Conclusion
I am of the view that there is no reasonable prospect that another
court could come to a different finding with regard to the
condonation rulings or the review of the rescission application.
The application for leave to appeal is dismissed with costs.
______________________________________
STEENKAMP J
Date of ruling:
31 March 2011
For the applicants:
Adv F Rautenbach
Instructed by Ward Ward & Pienaar
For the third respondent:
Adv ML Sher
Instructed by Bernadt Vukic Potash & Getz
1
The
parties filed their submissions in this regard on 3 and 11 March
2011 respectively. The application for leave to appeal was
decided
in chambers in terms of rule 30(3A) and clause 14 of the
Consolidated Practice Directive of 2010.
2
See
e.g. para [54] – [60] of the judgment
3
(2000)
21
ILJ
1079
(LAC) 1081G – 1082A
4
(2003)
24
ILJ
2284
(LAC) para [6]
5
(2002)
23
ILJ
1229
(LAC) 1231C
6
Para
[63]
7
Paras
[70] – [85] the