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[2014] ZALCJHB 106
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Maiphwanya v Commission for Conciliation, Mediation And Arbitration and Others (JR2297/07) [2014] ZALCJHB 106 (3 April 2014)
REPUBLIC
OF SOUTH
AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA JOHANNESBURG
JUDGMENT
Non
Reportable
Case
No. JR.2297/07
In
the matter between:
SEA
Nl
REBECCA
MAIPHWANYA Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION First
Respondent
COMMISSIONER
SA1UEL KHAKHATI MQ Second
Respondent
THE
SOUTH AFRICAN POST
OFFICE Third
Respondent
Heard:
Considered
in
Chambers
Delivered:
3 April 2014
JUDGMENT
WILKEN,
AJ
Introduction
[1]
The applicant seeks leave to appeal
against the judgment delivered on 28 January 2014 dismissing the
Applicant’s application
to review and setting aside the order
making the arbitration award handed down by the Second Respondent an
order of Court. The
leave to appeal was brought on 21 February 2014.
[2]
I have decided not to afford the parties
the opportunity to address me in open Court. I do not believe that
there is anything else
that could be added to the application and
opposition for leave to appeal which has not been set out in the
submissions. I am satisfied
that the Applicant has been afforded a
full opportunity to advance her case,
[3]
The appeal was brought late and
condonation was granted solely to consider the leave to appeal on its
merits, given that the delay
was not significant. It is, however,
rather surprising considering the history of the matter that the
Applicant has once again
failed to comply with the time period to
bring an appeal.
Grounds
for leave to appeal
[4]
The Applicant relies on two main grounds
in support of its application for leave to appeal. These are:
4.1
Firstly, that the Court failed to
exercise judicial discretion properly in dismissing the review and
ought to have struck the matter
from the roll in order to give the
Applicant’s attorney an opportunity to remedy the defects with
the review application.
4.2
Secondly, that the Court failed to
consider the strong prospects of success of the Applicant in
dismissing the matter for want of
compliance with the Rules.
[5]
It
is trite that the central issue to determine in applications of this
nature is whether there is a reasonable prospect of another
court
coming to the
conclusion
that this Court erred in deciding the matter as it did.
[1]
[6]
On
the basis of the application for leave to appeal, this court must
consider whether another Court would conclude that the decision
made
by the Second Respondent was one which a reasonable decision-maker
could not reach.
[2]
Consideration
of grounds to appeal
[7]
In respect of the first complaint, there
is no merit to support the claim that the Court failed to exercise
its judicial discretion.
The Applicant's attorney was given an
opportunity to either remove the matter from the roll and apply for
condonation formally
and rectify the record, or to bring an
application from the Bar.
[8]
The Applicant elected to bring an
application from the Bar and the only justification proffered why the
Applicant failed to launch
the review within the required time
period, was the self-professed lack of proficiency in labour law of
the Applicant's attorney.
[9]
The
Applicant and Respondent both provided Salojee and Another NNO v
Minister of Community Development
[3]
in support of their cases that the application for leave to appeal be
granted or dismissed. It was held by the Court that:
...
There is a limit which a litigant cannot escape the results of his
attorney’s lack of diligence or insufficiency of the
explanation tendered. To hold otherwise might have a disastrous
effect on the observance of the Rules of this Court...’
[4]
[10]
it is evident that the explanations
tendered by the Applicant in the review application for the late
referral does not pass muster
having regard to Salojee, especially
given the content of the delay and lack of any explanation why no
formal condonation was brought
since launching of the review and the
hearing of this matter some six and half years later. In the
circumstances, the Applicant
did not provide a plausible explanation
for the delay.
[11]
Further, the Applicant argues that the
ultimate decision should be based on fairness and justice after
assessment of the conduct
of the Applicant and circumstances of the
case.
[12]
I
submit that due to the unjustifiable delay by the Applicant and the
analysis provided for in the review judgment
[5]
taking into account all the circumstances, that the ultimate decision
was just and fair.
[13]
Considering the first basis upon which
the leave to appeal is sought, I am satisfied that another Court
would not reasonably justify
such lax approach by the Applicant and
there is no reasonable prospect it would come to a different
contusion.
[14]
In respect to the second ground upon
which leave to appeal is sought, in that the Court failed to consider
the Applicant’s
prospects of success, the Court used its
discretion analysing all the circumstances surrounding the matter and
it was apparent
that there was significant non-compliance with the
Rules of the Court, especially, in failure to serve the record of
proceedings
upon the Third Respondent and not filing the entire
record in court, despite having been placed on terms by the Third
Respondent
in this regard
[15]
I am satisfied that there is not a
reasonable prospect of another court coming to a different
conclusion.
[16]
I am of the view that it would be
appropriate that each party pays its own costs.
[17]
In the circumstances, I issue the
following order:
17.1
Application for leave to appeal is dismissed
17.2
There is no order as to costs.
WILKEN,
AJ
Acting
Judge of the Labour Court of South Africa
[1]
Dince and Others \/ Department of Education North West Province and
Others [2010] 6 BLLR
631
LC, at para 3.
[2]
Sidumo and Another \/ Rustenburg Platinum Mines Ltd and Others
[2007] 12 BLLR 1097
(CC)
at
para 110.
[3]
1965 (2) SA 135 (A).
[4]
Ibid at 141C-D.
[5]
Review Judgement at paras 25 - 26, 23 January 2013.