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[2012] ZALCD 18
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EThekwini Municipality v Laban (D628/09) [2012] ZALCD 18 (24 January 2012)
5
IN THE LABOUR COURT OF
SOUTH AFRICA HELD IN DURBAN
Case No: D628/09
Not Reportable
In the
matter between
ETHEKWINI
MUNICIPALITY
..........................................................................
Applicant
AND
SHADRACK
IVAN LABAN
.........................................................................
Respondent
Date of Judgment : 24
January 2012
Judgment
Cele J
Introduction
[1]
This
application has been brought in terms of section 166 of the Act
1
as an application for
leave to appeal against a final
ex
tempore
order
dated 15 April 2010 issued by this court in terms of section
158(1)(c) of the Act, where an arbitration award dated 25 May
2009
was made an order of this court. The applicant further seeks leave to
be allowed to lead evidence on appeal. The application
ought to have
been filed within 15 days from the date of the order but it was filed
on 17 October 2011 and is therefore about 18
months late. The
applicant seeks condonation for such lateness.
[2] The respondent
opposed both the application for leave to appeal and the condonation
application simply on the basis that both
applications are an abuse
of the legal process, intended to frustrate his application for
contempt of court in seeking to give
effect to the terms of the
arbitration award.
Factual background
[3] On 14 August 2009 the
respondent filed an application to make the arbitration award an
order of court in this matter. The applicant
was given 10 days within
which to deliver a notice of opposition and an answering affidavit,
it intended to oppose the application.
No opposing papers were filed
and the Registrar of this court set the application down in the
unopposed role for hearing on 25
February 2010. Counsel for the
applicant appeared on 25 February 2010 and made representations as a
result of which the matter
was then postponed to the opposed role for
hearing on 15 April 2010. The applicant was directed to file its
answering affidavit
with a condonation application within 21 days
from the date of the order.
[4] When the matter came
to court on 15 April 2010 no opposing papers had been filed.
According to the parties the matter was stood
down for some
discussions which took place and this was also in the Judge’s
chambers. I do not have any recollection of the
fact and events and
accept the say so of the parties. According to the respondent it was
brought to the attention of this court
that there was a review
application pending against the same award sought to be made an order
of court. It remained unexplained
and therefore unclear why the
applicant approached court on 15 April 2010 without first filing
opposing papers to the section 158(1)(c)
application as already
directed by court. Effectively the application to make the award an
order of court was not opposed on 15
April 2010. The order was
finally granted by court on that day as prayed for.
[5] In the meantime there
was a pending review application in the same matter but under case
number D 529/2009 filed on 10 July
2009. The record of the
arbitration hearing was filed with the Registrar on 5 August 2009.
The applicant’s supplementary
affidavit in terms of rule 7A(8)
was files on 22 October 2009. On 19 January 2010 the respondent filed
his notice of opposition.
On 15 April 2010 the record of the
arbitration proceedings was served to the respondent’s
attorneys and on 29 April 2010
the respondent delivered his answering
affidavit. On 28 June 2010 the applicant filed an application for
condonation for the late
filing of the review application and for its
replying affidavit. The respondent filed its answering affidavit to
oppose the condonation
application on 23 July 2010 and he pointed out
that the granting of the section 158(1)(c) order was a bar to the
granting of the
review application. The applicant persisted in
seeking a review of the award. The Registrar set the review
application for hearing
on 7 June 2011 before Gush J who upheld the
view of the respondent by striking the matter off the roll. The
applicant sought legal
advice on the prospects of success of the
application for leave to appeal against the section 158(1)(c) order.
On 11 October 2011
the respondent initiated the contempt of court
proceedings, seeking to give effect to the award in this matter. The
applicant initiated
the present application. It contends that it had
initiated an application to stay the execution under the award and
that the application
was set down for a hearing on 25 September 2009.
The respondent denied knowledge of that application and called on the
applicant
to prove the same. No further submissions were made in that
regard and no papers were put up in support of that allegation. The
applicant said that the application for a stay of execution was also
set down for 15 April 2010. That statement was denied by the
respondent. There is no indication by the applicant what became of
that application. The file for this mater does not have any
papers
for the application to stay. Nor is there any reference given for the
case number.
Grounds for leave
to appeal
[6] Two grounds for leave
to appeal have been outlined as being that :
“
The
Learned Presiding Judge erred in failing to take into account the
fact that the Applicant had already instituted review proceedings
as
at 15 April 2010;
The Learned Presiding Judge erred
in granting the order in the light of the pending review proceedings
under case number D520/2009.”
[7] In its further
submissions in support of this application the applicant stated the
issue for consideration as being whether:-
“
the
learned Judge was correct in making the award an order of court
whilst the review was pending; alternatively
in the event that the learned Judge
was not aware of the pending review, whether the Applicant ought to
be given leave to lead such
evidence interlocutory to its application
for leave to appeal.
”
Grounds for
opposition
[8] The respondent
opposed both applications on the bases that:
The applicant was
represented by the same attorneys and counsel on 15 April 2010 and
on 7 June 2011 with the result that the applicant
knew about the
section 158(1)(c) as early as 15 April 2010;
There is no explanation
for the delay covering the period from 15 April 2010 and the period
7 June 2011;
It should have been
apparent as from the date of the service of the answering affidavit
on 23 July 2010, in the condonation application
that the applicant
was required to seek leave to appeal against the order of 15 April
2010;
Where there is a delay
in a review applicant a court may make an award its order.
Evaluation
[9] The failure of the
applicant to file an answering affidavit to the s158(1)(c)
application, after being accorded an opportunity
to do so has gone
unexplained in this matter. Court was accordingly faced with an
unopposed application and therefore no reason
to refuse the granting
of the order sought. This has resulted in parties speculating on what
happed or could have happened on the
day before the order was
granted. The respondent suggested that it was brought to court’s
attention that there was a review
application pending in the matter.
The applicant is not sure of this fact. None of the parties suggested
what court said about
the pending review application. It does not
appear that the file for the review application was brought to court
on the day as
would normally be the procedure in such situations. The
probabilities are that court was not appraised of the existence of
the
review application. It in that eventuality that the applicant
sought to be granted leave to lead further evidence on appeal. Even
if court was not told of the pending review application on 15 April
2010, there is no denial that such an application was pending.
This
court has regrettably not been told by the applicant what evidence is
intended to be led and its relevant.
[10] As correctly
submitted by the respondent, the application for condonation lacks an
explanation for material periods of the
delay, which period commences
with 15 April 2010 when an order sought to appeal against was granted
in the presence of the attorney
and counsel of the applicant. The
period of the delay is substantial. The only explanation proffered is
that the applicant was
under the impression that the s158(1)(c) order
was granted subject to the review application proceeding. The
explanation makes
no sense at all. Court could never make an award
its order subject to the stated condition. The applicant has not
indicated who
gave it this false impression and the circumstances of
it. In the absence of a credible and acceptable explanation for the
delay,
court does not even have to consider the merits of the matter.
[11] For what it is
worth, court considers briefly the merits and notes that, depending
on the circumstances of each case, an arbitration
award may be made
an order of court while there is a pending review application.
2
No case was made by the
applicant that in this case such an approach ought never to have been
taken. The applicant has incorrectly
assumed that a pending review
application is a bar to the granting of the s158(1)(c) order.
[12] Therefore the
following order will issue:
Condonation for the late
filing of the application for leave to appeal in dismissed;
The application for
leave to appeal is dismissed;
The applicant is to pay
costs of this application.
___________
Cele J.
APPEARANCES:
For the applicant: D
J Saks instructed by Mngoma-Mlaba & Khumalo attorneys.
For the respondent: D
Sridutt instructed by Maraj Attorneys.
1
The
Labour Relations Act Number 66 of 1995.
2
See
Ntshangane Speciality Metal CC
[1998] 3 BLLR 305
(LC); Bezuidenhout
v Johnston NO & Others (2006) 27 ILJ 2337.