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[2013] ZALCJHB 135
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Pillay v Diale NO and Others (JR 441/2010) [2013] ZALCJHB 135 (30 April 2013)
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case
no: JR441/2010
In the matter between:
NITHIAKALYANIE
PILLAY
.......................................................................................
Applicant
and
SIMON
DIALE N.O
.......................................................................................
First
Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
..........................................................
Second
Respondent
TSHWANE
UNIVERSITY OF TECHNOLOGY
............................................
Third
Respondent
Heard:
29 April 2013
Delivered:
30 April 2010
judgment leave to appeal
SAVAGE AJ
This is an application for leave to appeal against the judgment made
by this Court on 28 October 2011 refusing to condone the
applicant’s
late filing of a review application and dismissing the review
application.
The review application sought to review and set aside a ruling made
by the first respondent in which condonation for the applicant’s
referral of a dispute to the second respondent more than 500 days
out of time was refused.
The application for leave to appeal against the judgment of this
Court was filed on 26 January 2012 and is opposed by the third
respondent. This Court’s
ex tempore
judgment was not
attached to the application for leave to appeal. At my request, the
judgment was transcribed and it was only
on 29 April 2013 that the
application together with the complete record was provided to me for
consideration.
Rule 9(2) of the Labour Court requires that notice of appeal must be
filed within 10 days of the date on which the person filing
the
notice of appeal is notified of the decision that is the subject of
the appeal. The application for leave to appeal in this
matter was
filed on 26 January 2012, outside of the 10 day period provided for
in Rule 9. In spite of this, the applicant has
not sought
condonation for the late filing of the notice of appeal. On this
basis alone, the application falls to be dismissed.
However, in spite of the applicant’s late filing of the
application for leave to appeal, given that the applicant is
unrepresented and for the sake of completeness, the merits of the
application have been considered.
The grounds of appeal as set out in the notice of appeal are that
this Court –
6.1. erred in failing to apply fundamental legal principles prior to
making a determination in the matter;
6.2. gave judgment with no deliberation and acted
prejudicially in handing down judgment on 28 October 2011;
6.3. “
erred in finding that the third
respondent presented no legal argument in opposing the condonation”;
6.4. erred in not taking into account the serious
and complex nature of the case and in not using its power to call for
further
investigation into the condonation issue; and
6.5. erred in not looking at the case collectively
and in failing to uphold justice and look after the interests and
welfare of
the voiceless.
The Respondent opposes the application for leave to appeal on the
basis that –
7.1. the application for leave to appeal was filed out of time with
no application for condonation;
7.2. the correct approach to the application for condonation in
respect of the late filing of the review application was adopted
by
the Judge, in accordance with judgments of the Labour Court, the
Labour Appeal Court and the Supreme Court of Appeal;
7.3. the Judge correctly exercised her discretion through considering
the relevant factors;
7.4. there exists no possibility that another court might interfere
with the judgment; and
7.5. the Applicant’s referral to the Second Respondent was 589
days out of time without any proper explanation for the excessive
delay and the review application has no prospects of success.
In order for an application for leave to appeal to succeed this
Court must consider whether there is a reasonable prospect of
the
appeal succeeding and, whether or not the case is of substantial
importance to the Appellant or to both the Appellant and
the
Respondent justifying leave to appeal.
1
S 145(1) of the Labour Relations Act permits an application for
review to be made to the Labour Court within
six
weeks of the date that the award was served on the applicant. In
spite of this, the Applicant's review application was filed
three
weeks late. This Court concluded that no reasonable or proper
explanation for this delay had been made out by the Applicant,
who
simply submitted that the delay was marginal without any reasonable
or proper explanation having been provided for such delay.
In the
absence of a proper explanation for the delay, I am satisfied that
the decision to refuse the grant of condonation was
justified given
both the facts and the law and that there exists no reasonable
possibility that another court will find differently,
or that the
appeal in such circumstances has reasonable prospects of success.
In addition, I am satisfied that the decision to
refuse condonation was further justified given the underlying
prospects of success
in
the Applicant's review application,
notably the fact that the Applicant's dispute was referred to the
Second Respondent more than
500 days after time without any proper
explanation for that excessive delay.
In such circumstances, I am not satisfied that there exists any
reasonable prospect of success in an appeal against the judgment
of
this Court. On the facts before me I am unable to find that the case
of such importance, or that it concerns a matter of law
or fact that
justifies the grant of the application for leave to appeal.
Furthermore, I am satisfied that the applicable legal
principles
were applied at all times prior to making a determination in the
matter, that judgment was deliberated, that the nature
of the case
was understood and that this Court acted in the manner required of
it at all times, with due regard to the interests
of justice.
Whilst costs in the normal course should follow the result, given
that the applicant is unrepresented, I am satisfied that it
is in
the interests of justice that no order as to costs should be made in
this matter.
In the result, the following order is made:
The application for leave to appeal is dismissed.
There is no order as to costs.
____________________
K M Savage
Acting Judge of the Labour Court of South Africa
APPEARANCES:
FOR THE
APPLICANT: Adv Kobus Steyn
INSTRUCTED
BY:
Hassan, Parsee & Poovalingam
FOR THE
RESPONDENT: Adv Hein Gerber
INSTRUCTED BY: Clarinda Kugel
Atorneys
1
Zweni
v Minister of Law and Order
1993 (1)
SA 523
(A) at 531C.