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[2013] ZALCJHB 131
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Molobola and Others v Hawyes and Others (JR 2166/08) [2013] ZALCJHB 131 (4 July 2013)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Case
no: JR2166/08
In
the matter between:
MALOBOLA,
NOMSA
SEEMA,
TABETA
NTULI,
PRETTY
.............................................................................................................
Applicant
and
COMMISSIONER
MA HAWYES
........................................................................
First
Respondent
THE COMMISSION FOR
CONCILIATION,
MEDIATION
AND ARBITRATION
................................................................
Second
Respondent
SHOPRITE CHECKERS (PTY)
LTD (EASTLYNN)
..........................................
Third
Respondent
RULING
VAN
VOORE AJ
1.
This is a Ruling in respect of an application for leave to appeal.
The application for leave to appeal is opposed by the third
respondent.
2.
Paragraphs 5 to 5.19 of the applicants’ notice of application
for leave to appeal is a summary (not necessarily accurate)
of the
written reasons.
3.
The applicants contend that the Court
a quo “did not attach
the appropriate weight or failed to consider ... the numerous steps
taken by the Applicant...”
(paragraph
7 of the notice of application for leave to appeal). In view of the
facts of this matter (largely common cause and undisputed)
this
contention is unsustainable.
4.
Paragraphs 6.1 to 6.12 of the notice of application for leave to
appeal is largely a summary (not necessarily accurate) of the
affidavit filed in opposing the third respondent’s application
to have the review application dismissed.
5.
The applicants make,
inter alia,
the following submissions:
5.1.
Towards the end of November 2008 the CCMA was telephonically
contacted and undertook to lodge the documents and audio recording
with the Registrar of the Labour Court (the Registrar).
5.2.
On 15 January 2009 a letter was sent to the CCMA requesting that it
complies with the notice of motion in the review application.
On 2
February 2009 the applicants launched an application to compel the
CCMA to comply with Rule 7A(4) of the Rules of the Labour
Court. On
16 February 2009 the CCMA delivered a notice of compliance. However
the material lodged did not include the audio recordings.
During July
2009 the applicants received a further notice from the CCMA informing
them that four audio tapes had been delivered
to the Office of the
Registrar. The union informed the third respondent of this on 7
August 2009.
5.3.
Telephonic enquires were apparently made of the transcription service
and on 13 May 2010 a letter was sent to the transcription
service.
5.4.
On or about 1 September 2010 the applicants were apparently informed
that the audio recordings were of poor quality.
6.
The contention that the CCMA was contacted telephonically towards the
end of November 2008 formed no part of the affidavit opposing
the
third respondent’s application to dismiss the review
application. Even if such telephonic contact was made, it does not
take matters any further.
7.
Paragraph 6.9 of the application for leave to appeal refers to an 8
(eight) week period. This however takes the matter no further.
8.
It appears that it is contended that the written reasons did not deal
with the steps taken by the applicants during the period
October 2008
to August 2009. However, this contention is incorrect. The applicants
contend that the Court a
quo
did not “
attach the
appropriate weight or failed to consider ... the numerous steps taken
by the Applicant’.
The written reasons for the order
expressly and at paragraphs 7, 8 and 9,
inter alia,
refers to
the developments in relation to the lodging of the documents and
audio recordings with the office of the Registrar. The
written
reasons take account of the steps taken by the applicants in relation
to the lodging of the documents and audio recordings
with the
Registrar. Those steps were taken over the period mid-October 2008 to
mid-July 2009. The written reasons specifically
record that those
steps were wholly insufficient.
9.
In the notice of application for leave to appeal the applicants
contend that the Court
a quo
erred in dismissing the review
application because the reason for the delay was not attributable to
“
the applicants alone let alone the RAWU”
but
rather because of:
“
8.1.
The CCMA by failing to deliver a record timeously which resulted in
an application to compel being launched.
8.2.
the CCMA second by deliver incomplete record without audio recordings
(tapes) of arbitration proceedings;
.......................
8.5.
audio recording of the matter to be review timeously which resulted
in an application to compel being launched; was
launched the
Applicants attorney of record. ”
10.
The above submissions has been dealt with at paragraphs 7, 8 and 9
above.
11.
The Applicants specifically contend that the Court a
quo
did
not “
attach the appropriate weight or failed to consider the
... numerous steps taken by the Applicant’.
However, this
is misguided and incorrect. The written reasons dealt extensively
with the various periods whilst the review application
was still live
and before 8 October 2010, when the third respondent launched an
application to have the review application dismissed.
The written
reasons do in fact take into account the developments and contentions
referred to at 6.1 to 6.8 and paragraphs 8.1
to 8.3 of the notice of
application for leave to appeal, being the period in which the CCMA
was taking various steps. Notwithstanding,
this it remains the case
that over the period 13 October 2008 to July 2009 wholly insufficient
steps were taken by the applicants
in pursuit of or in prosecution of
the review application. Over that same period the third respondent
made regular written enquiries
as to progress in the review
application. There is no real factual dispute as to what transpired
between the period October 2008
to July 2009. These developments are
dealt with in the written reasons for the order. On the basis of
those facts, which are to
a large extent common cause and certainly
not the subject of any serious dispute, it cannot genuinely be
contended that there is
a reasonable possibility that another Court
would come to a different conclusion.
12.
The applicants also in notice of application for leave to appeal
attempt to attribute the delay, in part, to the CCMA and others.
On
the common cause and undisputed facts of this matter, this contention
is wholly unsustainable. This too is dealt with expressly
in the
written reasons.
13.
The written reasons also took into account the period July/August
2009 to October 2010. Some of the developments are dealt with
in the
submissions at paragraphs 6.9 to 6.14 and 8.4 and 8.5 of the notice
of application for leave to appeal. The facts as to
what transpired
between the period July/August 2009 to October 2010 are in the main
common cause and undisputed. The assessment
that very little was done
in pursuit of the review application, that the applicants took wholly
insufficient steps and that no
substantive steps were taken is based
on those facts. This assessment is further underscored by the content
of paragraphs 6.9 and
6.10 of the notice of application for leave to
appeal. These paragraphs refer in vague, generalised and unspecific
terms to ‘
telephonic enquiries’
following ‘
the
end of October 2009'
and 13 May 2009 and ‘a
letter1
also of 13 May 2010. It is beyond reasonable dispute that in the
period July/August 2009 to October 2010 very little was done in
the
prosecution or pursuit of the review application. Over that same
period the third respondent made numerous and regular written
enquiries as to progress in the review application.
14.
At 8.3 of the notice of application for leave to appeal it is
contended that the Court
a quo
erred in dismissing the review
application because the reason for the delay was that the CCMA
delivered “
inaudible tapes”.
The written reasons
deal with this aspect fully. By July 2009 the CCMA had dispatched
audio recordings to the office of the Registrar.
After the lodging of
the audio recordings with the Registrar’s office very little
way by way of substantive steps were taken
in the further prosecution
of the review application. This is dealt with at length at,
inter
alia,
paragraphs 10 to 18 of the written reasons. The fact that
it later transpired that the audio recordings were of a poor quality
does not change matters. That the audio recordings were apparently of
a poor quality emerged during August 2010. This fact cannot
assist
the applicants in an application for leave to appeal. The fact
remains that by August 2010 nearly two years have passed
since the
review application was launched in October 2008.
15.
The applicants also contend that a reason for the delay was the
failure by the respondents to “
meet to endeavour
reconstruction of the arbitration record”.
At no time prior
to 3 September 2010 was the third respondent called upon to meet with
the applicants in an attempt to endeavour
to reconstruct a record of
the arbitration proceedings. Accordingly, this contention cannot
assist the applicants and it is entirely
misplaced in the application
for leave to appeal.
16.
The ground at 8.5 of the notice of application for leave to appeal is
merely a restatement of the issues referred to at 8.1
and 8.2 of the
notice of application for leave to appeal. I have dealt with those
grounds above.
17.
As is apparent, the applicants’ alleged grounds of appeal
including those referred to at 8.1 to 8.5 of the notice of
application for leave to appeal are wholly unsustainable.
18.
Further, there is a suggestion at paragraph 9 of the notice of
application for leave to appeal that another Court in balancing
the
competing interests of the party
“
could
find that justice favours the applicants”.
In
the face of the facts of this matter, mainly common cause and the
balance largely undisputed, this too is not sustainable. The
Court
a
quo
did
have regard to the competing interests of the party and this is
expressly dealt with in the written reasons. Moreover, the relevant
legal principles were considered and applied to the facts and
circumstances of this case.
1
19.
It is within the discretion of the Labour Court to debar or preclude
an applicant from persisting with a review application
in
circumstances where,
inter
alia,
wholly
inadequate or insufficient steps have been taken in the prosecution
of a review application.
2
The
factors taken into account in the exercise of that discretion are
dealt with expressly at,
inter
alia,
paragraphs
18, 19, 20 and 21 of the written reasons.
20.
On the facts of this matter there can be little doubt that the
applicants took wholly insufficient steps in the prosecution
of the
review application. It is not contended that the application to
dismiss the review application could not be brought.
3
21.
In all of the circumstances, there is no reasonable possibility that
the Labour Appeal Court will come to a different conclusion.
Moreover, an Appeal Court will overturn a decision of the kind which
forms the subject matter of the application for leave to appeal
in
circumstances where,
inter alia,
the Court
a quo
misdirected itself concerning the applicable legal principles and did
not properly (judiciously) exercise the discretion conferred
upon it.
The facts of this matter and the grounds identified in the
application for leave to appeal do not present as such a case.
Order
22.
The Application for leave to appeal is refused.
23.
There is no order as to costs.
VAN
VOORE
ACTING
JUDGE OF THE LABOUR COURT
4
TH
JULY 2013
1
Sishuba
v National Commissioner of SAPS (2007) 28 ILJ 2073 (LC) at para [9]
- [12]; Cassimjee v Minister of Finance (455/11)
[2012] ZA SCA 101
(1 June 2012) at para [11] - [12]
2
Sishubu
v National Commissioner of SAPS [2007] to BLLR, at 991B - D
3
Bernstein
v Bernstein 1948(2) SA 205 (W); Kuiper & Others v Benson
1984
(1) SA 474(W)
;Sishuba v National Commissioner of SAPS (2007) 28 ILJ
2073 (LC) at para [9] - [12]