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[2014] ZALCJHB 184
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Filter and Hose Solutions A Division of Hudaco Trading (Pty) Ltd v Commission For Conciliation, Mediation and Arbitration and Others (JR 601/11) [2014] ZALCJHB 184 (21 May 2014)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
Case no. JR
601/11
In
the matter between:
FILTER
AND HOSE SOLUTIONS
A
DIVISION OF HUDACO TRADING (PTY) LTD
…......................................................
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
…....................................................................
First
Respondent
COMMISSIONER
N
MBHELE
............................................................................
Second
Respondent
CEPPWAWU
obo P SEKHWELA
….......................................................................
Third Respondent
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 set
aside the arbitration award reinstating Phusha Sekhwela (“the
Employee”) and ordering the Applicant
to pay the employee
R27 000.00 in back pay issued by the Second Respondent on 6
February 2011.
[2]
The application for leave to appeal does not comply with the rules of
the Labour Court or the practice directive effective from
2 April
2013 and in addition has been brought late. The Applicant seeks
condonation for the late bringing of the application
for leave to
appeal.
[3] The application
for leave to appeal was filed on 24 April 2014. The application
for leave to appeal had to be brought
within 15 (fifteen) days of the
judgment being handed down but was brought only 58 (fifty-eight) days
after the handing down of
the judgment. In the context of the
time period allowed for the launching of an application for leave to
appeal, the delay
in launching the appeal is considerable.
[4]
The test for granting condonation is well known and requires the
Court to consider a number of factors, including the extent
of the
delay, the explanation for the delay, the prospects of success in the
main action, the importance of the matter and the
potential prejudice
should condonation be granted. Where there is a long delay and a good
explanation for the delay, the explanation
outweighs the length of
delay. However where there is no plausible explanation for the
delay, the length and failure to provide
a plausible explanation for
the delay are factors which may outweigh good prospects of success.
.
[1]
[4]
I have already noted that the delay in the context is considerable
and given the objects of the Labour Relations Act 66 of 1995
to
ensure that employment disputes are resolved speedily, the delay in
prosecuting the appeal in the current circumstances, the
unsatisfactory explanation advanced and obvious acquiescence in the
judgment for some time after the expiry of the time period
within
which to appeal, I am disinclined to grant the Applicant condonation
in bringing the application for leave to appeal.
[5]
Whilst, having come to the decision I have, it is not necessary for
me to consider the prospects of success on appeal, the failure
of the
Applicant to appreciate the basis upon which leave to appeal could
sought.
[2]
I am furthermore of
the view that the Applicant’s prospects of success are in any
event poor.
[6] The Third
Respondent, in opposing the application for condonation and
application for leave to appeal seeks its costs in opposing
the
application for leave to appeal on the basis of an attorney and own
client scale. Considering all the circumstances of
the matter,
I am satisfied that the third Respondent has made out a case for its
costs in opposing the leave to appeal.
[7] I accordingly,
issue the following order:
1
the application for leave to appeal is
dismissed; and
2
the
Applicant is to pay the Third Respondent’s costs on a party and
party scale.
_____________________
Wilken, AJ
Acting Judge of the
Labour Court of South Africa
21 May 2014
[1]
Melane
v Santam Insurance Co. Ltd
1962 (4) SA 531
at 532 C-F and
NUM
v Council for Mineral Technology
[1999]
3 BLLR 209 (LAC
[2]
Dince
& Others v Department of Education North West Province &
Others
[2010] 6 BLLR 631
LC at paragraph 4 and S v Smith 2010 (1)
SACR at 576 (SCA).