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[2013] ZALCJHB 93
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Carpede v LG Electronics SA (Pty) Ltd (JS 877/10) [2013] ZALCJHB 93 (19 March 2013)
3
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
case
no: JS 877/10
In the matter between:
INGRID
MARY-BETH CARPEDE
.........................................................
Applicant
and
LG
ELECTRONICS SA (PTY) LTD
...................................................
Respondent
Decided
:
In Chambers
Judgment : 19 March
2013
Summary : Application
for leave to appeal dismissed with costs.
judgment
AC BASSON J
[1] This was an
application for leave to appeal against my order dismissing the
condonation application with no order as to costs.
[2] The grounds for leave
to appeal as set out in the application are difficult to understand.
However, it appears that the appeal
is based on the following two
issues. Firstly, the court erred in finding that the applicant was
required to apply for condonation
and secondly, the court erred in
finding that the applicant had failed to tender a proper explanation
for the delay. In respect
of the first issue, it is clear that the
applicant had to apply for condonation. I should also point out that
even the condonation
application was late and that no explanation for
the lateness thereof was tendered. In respect of the second ground:
The applicant
did not tender a proper explanation for the delay and I
am of the view that there is no prospect of an appeal court
interfering
with the exercise of a true discretion on very limited
grounds.
[3] The test for granting
of leave to appeal was clearly laid out by the Supreme Court in
Zweni
v Minister of Law and Order
1993 (1) SA
523
(A):
“
The
jurisdictional requirements for a civil appeal emanating from a
Provincial or Local Division sitting as a Court of first instance
are
twofold:
(1) the decision appealed against
must be a 'judgment or order' within the meaning of those words in
the context of s 20(1) of the
Act; and
(2) the
necessary leave to appeal must have been granted, either by the Court
of first instance, or, where leave was refused by
it, by this Court.
Leave is granted if there are reasonable prospects of success. So
much is trite. But, if the judgment or order
sought to be appealed
against does not dispose of all the issues between the parties the
balance of convenience must, in addition,
favour a piecemeal
consideration of the case. In other words, the test is then
'whether
the appeal - if leave were given - would lead to a just and
reasonably prompt resolution of the real issue between the
parties'
(per Colman J in Swartzberg v
Barclays National Bank Ltd1975 (3) SA 515 (W) at 518B).”
[4] I have considered the
matter and I am in agreement with the respondent that there are no
prospects of success on appeal. It
is trite that the doctrine of
vigilantibus non dormientibus lex subvenit
1
has been accepted by our courts and is an accepted and established
doctrine in our law and especially in the labour law sphere.
Furthermore, the condonation application itself was late and no
reasons were provided in that respect.
[5] I have therefore
concluded that there are simply no reasonable prospects that another
court would come to a different conclusion.
In respect of costs, I am
of the view that costs should follow the result.
[6] In the event the
following order is made:
6.1 The application for
leave to appeal is dismissed with costs.
_______________________
AC BASSON J
Judge of the Labour Court
1
Mkhize
v Tanker Services (Pty) Ltd
(1993) 14
ILJ 688 (LAC: