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[2013] ZALCJHB 58
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Resins v National Bargaining Council for Chemical Industry and Others (JR 2322/10) [2013] ZALCJHB 58 (29 April 2013)
3
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
CASE NO:
JR
2322/10
In the matter between:
ROLFES
RESINS (PTY) LTD
......................................................................................
Applicant
and
NBCCI
.............................................................................................................
First
Respondent
COMMISSIONER
F MOOI
NO
...................................................................
Second
Respondent
SACWU
obo BETHUEL MBELE
...................................................................
Third
Respondent
Judgment delivered: 29
April 2013
RULING: APPLICATION
FOR LEAVE TO APPEAL
VAN
NIEKERK J
[1] This is an
application for leave to appeal against a judgment delivered by the
court on 7 December 2012. The judgment was delivered
ex tempore.
On 22 January 2013, the applicant requested a transcription of
the judgment. A transcribed, signed judgment was made available to
the parties on 18 March 2013. The present application was filed on 9
April 2013.
[2] The relevant rule
requires an application for leave to appeal to be filed within 15
days of the judgment in respect of which
the application is made.
When the reasons for judgment are only made available later, the time
limit commences running on the day
that the reasons are made
available, and not the date on which any transcription of an
ex
tempore
judgment is made available to the parties. In the present
instance, full reasons for the court’s judgment were given on 7
December. The transcription was simply that – a record of the
full reasons already given. The applicant was required therefore
to
have filed the present application by no later than 4 January 2013.
It failed to do so. The applicant only requested a transcript
on 22
January 2013; nearly three weeks after the present application ought
to have been filed. In the absence of an application
for condonation
for the late filing of the application, leave to appeal stands to be
refused.
[3] In any event, the
application for leave to appeal misconceives the nature of the review
proceedings that were the subject of
the judgment in respect of which
leave to appeal is sought. The Labour Appeal Court has noted that
given the nature
Sidumo
test, it is not often that arbitration
awards made by commissioners or bargaining council arbitrators will
be reviewed and set
aside, and that the distinction between a review
and an appeal remains intact. The grounds for appeal in the present
instance are
predicated on the assumption that the court was required
to determine the correctness of the arbitrator’s decision, and
not
its reasonableness. There is nothing in the grounds for leave to
appeal that suggests that the court erred in finding that on the
applicant’s version, the arbitrator’s decision fell
outside of the band of decisions to which reasonable decision-makers
could come on the available material.
For these reasons, I make
the following order:
Leave to appeal is
refused.
Andrè van Niekerk
Judge of the Labour Court