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[2012] ZALCJHB 20
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MCC Contractors (Pty) Ltd v Johnston NO and Others (JR 2727/07) [2012] ZALCJHB 20; (2012) 33 ILJ 2096 (LC) (24 February 2012)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
case
no: JR 2727/07
In the matter between:
MCC
CONTRACTORS (PTY) LTD
…......................................................................
Applicant
(Applicant
in the application for leave to appeal)
and
LORRAINE
JOHNSTON NO
…...................................................................
First
Respondent
THE
COMMISSION FOR CONCILIATION
MEDIATION
AND ARBITRATION
…......................................................
Second
Respondent
NUM
o.b.o DAVID NEL
…..........................................................................
Third
Respondent
(Respondents
in the application for leave to appeal)
Decided : In Chambers
Order
: 23 February 2012
Summary: Late filing of an
application for leave to appeal. No condonation application.
Application dismissed with costs.
JUDGMENT
AC BASSON J
Introduction
This is an application for leave to
appeal against a finding of this Court dismissing an application for
review. The order dismissing
the review application was made on 13
August 2009 and the written detailed reasons were delivered on 26
January 2010. The applicant
only filed its application for leave to
appeal on 13 May 2010. The application is not accompanied by an
application for condonation.
In terms of Rule 30 (3) of the Rules
of the Labour Court, an application for leave to appeal must be made
within 10 days after
the date on which the reasons are given (in
circumstances where the reasons or the full reasons for the court’s
order are
given on a date later than the date of the judgment or
order), except that the court may, on good cause shown, extend that
period.
Rule 49(1) of the High Court Rules
similarly provides that an application for leave to appeal may be
made within 15 days after
the date when the reasons or the full
reasons for an order or judgment have been given, provided that the
court may extend the
period of 15 days on good cause shown. Although
the courts seem generally reluctant to formulating a definite test
as to what
constitutes such ‘good cause’,
1
the courts will consider the length
of the delay, the explanation for the delay, the merits of the
appeal and the benefit to the
applicant and the disadvantage to the
respondent, and lastly the desirability of litigation being brought
to finality:
2
See in this regard:
Michaels
v Wells, NO,
3
where Van Winsen J set out the
principles as follows:
‘
Rule
49 (1) requires the party intending to appeal to deliver his notice
of appeal within 21 days after the date of the order appealed
against, but the Court may “on good cause shown” extend
such period. The Courts have consistently refrained from formulating
definitive tests as to what constitutes “good cause” but
certain factors have been indicated to which a Court will
generally
have regard in the exercise of its discretion. Such factors include
the following, namely, the length of the delay involved,
the
explanation for it, the merits of the case of the applicant for
relief, the benefit to the applicant and the disadvantage to
the
respondent, as well as the desirability of litigation being brought
to finality. See e.g.
Cairns'
Executors
v.
C Gaarn,
1912 AD 181
at pp. 186
et
seq.; Rose and Another v Alpha Secretaries Ltd.
,
1947
(4) SA 511 (AD)
;
Meintjies
v H. D. Combrinck (Edms.) Bpk.
,
1961
(1) SA 262
(AD)
;
Melane
v Santam Insurance Co. Ltd.
,
1962
(4) SA 531
(AD)
;
De
Kuszaba-Dabrowski et Uxor v Steel, N.O.: Venturas v De
Kuszaba-Dabrowski et Uxor
,
1966
(2) SA 277 (RAD)
.
These
factors will not necessarily be accorded the same weight
inter se
and in varying circumstances the importance attached to each in the
conspectus of relevant facts will similarly vary. Thus in
Meintjies'
case,
supra
at p. 265, it was said that long delay will be
more readily condoned where the prospects of success are convincing,
while in
Melane's
case,
supra
, the Court remarked that
“
a
slight delay and a good explanation may help to compensate for
prospects of success which are not strong. Or the importance of
the
issue and strong prospects of success may tend to compensate for a
long delay”.
One
further observation of a general nature should be made. In
Meintjies'
case,
supra
, STEYN, C.J., at pp. 263 - 4 remarked as follows:
“
Die
bewyslas rus op die petisionaris. Dit is hy wat die Hof moet oortuig
dat hy 'n goeie aanspraak op vergunning van kwytskelding
het. Omdat
'n Hof uit die aard van die saak aarsel om 'n party deur nie-nakoming
van 'n prosestermyn die geleentheid te laat verbeur
om 'n reg geldig
te maak (vgl.
Phillips
v Direkteur vir Sensus
,
1959
(3) SA 370 (AA)
op
bl. 374) is hy geneë tot 'n toeskietlike oorweging van 'n
aansoek soos die onderhawige; maar so 'n aansoek is allermins
'n
blote formaliteit.”
In
Regal
v African Superslate (Pty.) Ltd.
,
1962
(3) SA 18
(AD)
at
p. 23, the Court, referring to the above
dictum
,
said that
“
although
the power to condone a failure to comply with a procedural rule
within a prescribed period will be exercised only upon
sufficient and
satisfactory grounds being shown, an application such as the present
will receive favourable consideration because
a Court is hesitant to
allow a party to forfeit the enforcement of a right by reason of the
non-compliance with such a Rule”.’
4
As already pointed out, the applicant
in the present application made no attempt whatsoever to explain the
delay and I am of the
view that the application for leave to appeal
should therefore be dismissed on this basis alone. The Rules of the
Labour Court
(and that of the High Court) provides for time periods
within which an application for leave to appeal must be brought.
There
are important policy considerations for requiring a party to
file an application for leave to appeal within a certain time
period.
Where a party does not observe the Rules, such a party must
apply for condonation and it is for the applicant to satisfy the
court that there is sufficient cause to excuse him or her from not
complying with the Rules.
5
Van Zyl, J in
Michaels
6
(
in
refusing the application for condonation for the late filing of the
application for leave to appeal), summarises the policy
considerations underlying the requirement that an application for
leave to appeal must be filed within a certain time limit as
follows:
‘
I
find myself in agreement with the English cases quoted by my Brother
VAN WINSEN. I do not think that the mere fact that a Court
of appeal
has subsequently given another judgment is sufficient cause to
condone the late noting of appeal. It seems to me that
proper weight
must be given to the fact that respondent has obtained judgment in
his favour which has become final through the
applicant deliberately
refraining from noting an appeal. In
Cairns'
case SOLOMON, J., said:
“
After
all the object of the Rule is to put an end to litigation and to let
parties know where they stand. It would be intolerable,
if there were
no reasonable limit of time within which appeals might be brought,
and it is in the interest of the public that the
time should be
limited. When a party has obtained a judgment in his favour and the
time allowed by law for appealing has lapsed,
he is in a very strong
position, and he should not be disturbed except under very special
circumstances.”
In
a case like the present the “very special circumstances”
it seems to me must be something more than an assured ultimate
success. It seems to me that they must relate to the abandonment and
explain it in such a manner that the Court, quite apart from
the
final result, feels justified in allowing the applicant to change his
mind. In this case no circumstances were quoted to us
which can be
said to be very special circumstances which would justify the Court
in allowing the applicant to change his mind.
The only circumstance
relied upon by the applicant is the assured success of the appeal if
the application is granted. This does
not seem to me sufficient
ground for depriving the respondent of his right to the final
judgment which he obtained through the
applicant abandoning his right
to note an appeal.
In
these circumstances I am of opinion that the application should be
dismissed with costs.
’
I am in agreement with Van Zyl, J. In
the context of labour litigation, there is however a further
important consideration that
should be taken into account which is
that labour disputes should be resolved speedily. Any delay in
brining the application
for leave to appeal should therefore be
properly explained. In the present case no such explanation has been
proffered. In the
event, the application for leave to appeal is
dismissed with costs.
I have despite my view that the
application should be dismissed for non-compliance with the Rules,
nonetheless considered the
lengthy submissions filed by Mr. Snyman
on behalf of the applicant and those filed on behalf of the
respondent. I am not persuaded
that there is a reasonable prospect
of success on appeal and would, in any event have dismissed the
application for leave to
appeal had it been filed within the time
periods stipulated in the Rules of the Labour Court.
_______________________
AC BASSON J
Judge of the Labour Court
APPEARANCES
FOR THE APPLICANT: Mr Snyman of Snyman
Attorneys.
FOR THE RESPONDENT: Mr K Naidoo of
Cheadle Thompson & Haysom Incorporated
1
See
for a general discussion: Herbstein & van Winsen
The Civil
Practice of the High Courts of South Africa.(
Juta, 2009 5
th
ed vol 2) page 1157 et seq.
2
The
Civil Practice of the High Courts of South Africa
at 1158.
3
1967
(1) SA 46
(C).
4
Michaels
v Wells
at 50 A – G.
5
The
Civil Practice of the High Courts of South Africa supra
at page
1228.
6
Michaels
v Wells
supra
at
48 D-H
.