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[2014] ZALCJHB 79
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Office Of The Presidency v PSA obo Mbiza (JR1567/10) [2014] ZALCJHB 79 (20 March 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
Of interest to other
judges
Case
no: JR 1567/10
In
the application for leave to appeal between:
OFFICE
OF THE
PRESIDENCY
Applicant
and
PSA
obo A H
MBIZA First
Respondent
GPSSBC Second
Respondent
Martin
SAMBO
No
Third
Respondent
Delivered:
20 March 2014
RULING ON CONDONATION
AND
application for leave
to appeal
STEENKAMP J:
Introduction
[1]
The
applicant seeks leave to appeal to the Labour Appeal Court against
the whole of my judgment and order handed down on 27 November
2013.
The application is some 25 court days late. The applicant seeks
condonation for the late filing of the application for leave
to
appeal.
The application for
condonation was only delivered on 29 January 2014, two months after
the judgment was handed down.
Condonation
[2]
I
shall deal with the application for condonation at the hand of the
well-known principles set out in
Melane
v Santam Insurance Co Ltd.
[1]
This Court is also guided by recent judgments of the Constitutional
Court. In
Grootboom
v National Prosecuting Authority
[2]
Bosielo AJ pointed out that the State Attorney has a duty to assist
the courts to maintain their “independence, impartiality,
dignity, accessibility and effectiveness”.
[3]
He reminded practitioners and litigants that the rules and courts’
directions serve a necessary purpose. And the primary
duty of the
office of the State Attorney is to serve the interests of the
government by initiating or defending proceedings against
the state.
Bosielo AJ concluded:
“
One
gets the impression that we have reached a stage where litigants and
lawyers disregard the Rules and directions issued by the
Court with
monotonous regularity. In many instances very flimsy explanations are
proffered. In others there is no explanation at
all. The prejudice to
the Court is self-evident. A message must be sent to litigants that
the Rules and the Court’s directions
cannot be disregarded with
impunity.”
Extent of the delay
[3]
I
handed down judgment on 27 November 2013. The parties were notified
that it would be handed down in open court on that day. The
state
attorney obtained a copy of the judgment and sent it to the Office of
the President on the same day. Rule 30(2) prescribes
that an
application for leave to appeal must be delivered within 15 days of
the date of judgment. Those
dies
expired on 19 December 2013. And the Practice Manual that came into
force on 2 April 2013 further provides:
[4]
‘
Within
10 days of the filing of the application for leave to appeal, the
party seeking leave must file its submissions in terms
of Rule 30(3A)
and the party opposing the leave must file its submissions five days
thereafter. An application for leave to appeal
will be decided by the
judge in Chambers on the basis of the submissions filed in terms of
Rule 30 (3A), unless the judge directs
that the application be heard
in open court.’
[4]
The
applicant only filed its application for leave to appeal on 16
January 2014 – almost a month late -- and the application
for
condonation on 29 January 2014. And Mr
Mokhari
only filed his submissions at Court on 13 February 2013, that is 20
days
[5]
after the applicant had
delivered the application for leave to appeal. His instructing
attorneys did not serve it on the PSA’s
attorneys of record,
Messrs Martins Weir-Smith. He did not seek condonation. I will
nevertheless consider his submissions.
[5]
The
applicant or the state attorney did not serve the application for
leave to appeal, the application for condonation or Mr
Mokhari
’s
submissions on the PSA’s attorneys, Martins Weir-Smith, when
they filed those documents at court. It was therefore
not “delivered”
as defined in the Rules. By 27 February 2014 -- the
dies
for delivering opposing submissions
having expired, calculated from the date of the late filing of Mr
Mokhari
’s
submissions – the registrar of this Court enquired from Messrs
Martins Weir-Smith whether they had delivered their
submissions, as
the Court was anxious to deal with the application. It is only then
that the existence of an application for leave
to appeal came to
their attention.
[6]
Unfortunately
Messrs Weir-Smith did not act within the prescribed times period
either. But, unlike the applicant and its attorneys
and counsel, Mr
Weir-Smith
has applied for condonation for the late filing of his submissions.
[7]
It
became apparent that the state attorney had used the wrong fax number
in attempting to serve the application for leave to appeal
on the
PSA’s attorneys. Mr Weir-Smith tried to phone the state
attorney in vain a number of times on 27 February 2014. After
he had
advised this Court’s associate, Ms Nakale, of his problems, the
state attorney’s Ms Maponya eventually phoned
him on 3 March
2014. He gave her his correct fax number. She faxed the application
to him on that day, but only sent him the applicant’s
submissions by email on 6 March 2014. Mr
Weir-Smith
delivered his submissions on 18 March 2014, that is three court days
late. The delay is not excessive, especially when compared
to the
late filing of the applicant’s submissions – more than 20
days late – that I have considered, even though
the applicant
had not applied for condonation for the late filing of the
submissions, but only of the application for leave to
appeal itself.
And Mr
Weir-Smith
has provided the Court with cogent reasons for his late filing,
whereas the applicant has not. Condonation for the late filing
of the
first respondent’s submissions is granted.
[8]
The
delay in delivering the application for leave to appeal, on the other
hand, is significant. It is almost double the period of
15 days
provided for in the rules. Given that significant delay, the Court
has to examine the reasons therefor.
Reasons for the
delay
[9]
Mr
Mokhari
blithely states in his submissions that
“
the
delay in filing the notice of application for leave to appeal was
occasioned by the fact that the judgment came towards the
end of the
year and the instructions from the principals was [
sic
]
only obtained in January to the effect that instructions should be
given to the legal representatives to file leave to appeal.”
[10]
It
is not clear who those unnamed “principals” are. In his
affidavit in support of the application for condonation,
Mr Duduzile
Mbongwa, the Deputy Director-General: Strategy & Operations, says
that he received a copy of the judgment on 27
November 2013. He goes
on to say:
‘
After
perusal of the judgment, I sought to obtain instructions from my
principals as to whether the judgment should be implemented
or
appealed against.’
[11]
That
was on 27 November 2013. Extraordinarily, Mr Mbongwa then jumps ahead
to December and says:
‘
I
could not receive a firm decision from my principals to appeal
against the judgment and order of Steenkamp J in December 2013
due to
the fact that the festive seasons [
sic
]
had already started and it was difficult to obtain instructions from
my principals. I only received instructions from my principals
on the
13
th
of January 2014 upon my return from the festive seasons [
sic
]
that the judgment and orders should be taken on appeal.’
[12]
Still
Mr Mbongwa does not say who these unnamed “principals”
are. There are no confirmatory affidavits attached. What
is even less
clear, is how the “festive seasons” already commenced in
November 2013. Perhaps that is why Mr Mbongwa
refers to festive
seasons in the plural – one festive season could not last that
long.
[13]
In
any event, Mr Mbongwa quite erroneously states as a fact that “the
delay is also not excessive given the fact that the
interruption of
the festive seasons is a matter that is to be taken into account in
the computation of dates”. That is simply
not so. There are no
dies non
in this Court. Firstly, the judgment was handed down on 27 November.
That is hardly “the end of the year”. The court
only went
into recess on 15 December 2013; and in any event, there are no
dies
non
in the Labour Court. There is
simply no explanation why “the instructions from the
principals" – whoever they
may be – were only
obtained in January 2014, and why the application was only filed –
without ensuring that it had
been properly served on the PSA’s
attorneys -- on 16 January. The applicant was represented by the
State Attorney and by
senior counsel throughout. They are well aware
of the rules of this Court. Their failure to adhere to the rules,
without any proper
explanation, is simply inexcusable. It amounts to
no reason at all. And this Court heeds the sentiments expressed by
the Constitutional
Court in
Grootboom
.
[14]
Given
the excessive delay and the poor reasons therefor, it is not strictly
necessary to consider the prospects of success.
[6]
I shall nevertheless take that factor into consideration.
Prospects of
success
[15]
What
the court has to take into account in the context of this condonation
application, are the applicant’s prospects of success
in the
application for leave to appeal. Is there, in other words, a real
prospect that another court may come to a different conclusion
on the
merits of the review judgment?
[16]
In
my judgement I found that part of the award of the arbitrator was
reviewable. There was simply no evidence to sustain the arbitrator’s
finding that the employer had discharged the onus of showing that
there was a fair reason for dismissal. That stated reason was
alleged
incompatibility between the employee and Ms Mbete. Yet there was no
evidence of such incompatibility before the arbitrator,
nor was the
employee given any opportunity to establish a rapport with Ms Mbete,
should it have been found absent. That part of
the award was reviewed
and set aside. It was substituted with a finding that the dismissal
was not for a fair reason and the Office
of the Presidency was
ordered to pay the employee compensation equal to three months’
remuneration.
[17]
The
applicant submits that I erred in reviewing and setting aside the
arbitration award insofar as the arbitrator found that the
dismissal
of Mbiza was substantively fair; and that I also erred in awarding
compensation. Mr
Mokhari
argued
that Mbiza was not entitled to any compensation due to the fact that
when his contract was terminated he was paid the balance
of his
contract and therefore he suffered no loss. In so doing, Mr
Mokhari
loses
sight of the distinction between compensation and damages. That
distinction is dealt with in paragraphs [26] – [34]
of the
judgment. It is a matter of trite law. It was recently confirmed by
the Constitutional Court in
FAWU
v Ngcobo & another.
[7]
There is no reasonable prospect that another court will come to a
different finding.
[18]
The
applicant submits that I also erred in finding that the dismissal was
substantively unfair because a dismissal of an employee
on a fixed
term contract “can never be substantively unfair if that
employee was placed in the position he would have been
in had the
termination not occurred earlier”. He cites no authority for
that proposition. The question was whether the employee
had been
dismissed for a fair reason. The stated reason for the dismissal was
incompatibility. The applicant laid no basis for
a finding that the
relationship between the employee and Ms Mbete was indeed
incompatible. There was simply no evidentiary basis
for such a
finding. Hence, the employer failed to prove that there was a fair
reason for dismissal. There is no prospect that another
court will
come to a different conclusion on the evidence that served before the
arbitrator.
[19]
In
conclusion, the applicant’s prospects of success in the
application for leave to appeal are poor.
Prejudice
[20]
The
applicant argues that there is no prejudice on any of the respondents
in the application for leave to appeal. On the contrary,
there is
substantial prejudice. The employee is entitled to compensation. The
delay occasioned by the applicant has meant that
he has not been
paid. He should have been paid before Christmas. Instead, his
“festive season” was anything but.
Conclusion
[21]
The
applicant has failed to make out a case for condonation. With regard
to costs, I take into account that the PSA and the employee
have had
to incur further costs in defending this application. However, they
did not oppose the application for condonation. I
further take into
account that the PSA’s submissions in the application for leave
to appeal were also delivered late, albeit
by only three days. In law
and fairness, I do not deem a costs order to be appropriate.
Order
The
application for condonation for the late filing of the application
for leave to appeal is dismissed.
_______________________
Steenkamp J
Appearances
For
the applicant:
W
R Mokhari SC
Instructed
by: The
State Attorney, Pretoria.
For
the first respondent:
Ian
Weir-Smith of
Martins Weir-Smith Inc,
Sandton.
[1]
1962 (4) SA 531
(A) at 532C-D.
[2]
[2014] 1 BLLR 1
(CC) paras 20] – [35].
[3]
Section 165(4) of the Constitution.
[4]
Clause
15.2.
[5]
In the rules and in the practice manual, “day” is
defined as “
a
day other than a Saturday, Sunday or public holiday”, and when
any particular number of days is prescribed for the doing
of any
act, the number of days must be calculated by excluding the first
day and including the last day. It differs in this regard
to the
LRA, where “day” is a calendar day.
[6]
NUM v
Council for Mineral Technology
[1999]
3 BLLR 209
(LAC) 211 H.
[7]
(2013) 34
ILJ
1383 (SCA);
[2013] 7 BLLR 648
(SCA);
2013 (5) SA 378
(SCA) para [6].