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[2014] ZALCJHB 207
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Mabudusha v Commission For Conciliation, Mediation And Arbitration and Others (JR3347/2010) [2014] ZALCJHB 207 (11 June 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
REPORTABLE
CASE NO JR 3347/2010
In the matter between:
WILSON
MABUDUSHA
Applicant
and
THE
COMMISSION FOR
CONCILIATION,
First
Respondent
MEDIATION AND
ARBITRATION
ARBITRATOR
– L NOWOSENETZ NO
Second
Respondent
LAND
BANK
Third
Respondent
Decided(In
Chambers): 11 June 2014
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
SEEDAT
AJ
[1]
This is an application for leave to appeal against my judgment of 10
January 2014 in terms of which I dismissed the application
for
condonation for the late filing of the application to review an award
issued by the second respondent.
[1]
Grounds
of appeal
[2] Firstly, the
applicant argues that the court had erred in finding that the
applicant’s attorneys were mistaken in their
belief that the
period applicable to reviews in the High Court was also applicable in
the Labour Court whereas the applicant’s
attorneys were
mistaken that the
dies non
that obtains in the High Court are
also applicable in the Labour Court.
[3] Secondly, the
applicant asserts that the court had erred in finding that the
applicant had no prospects of success in the review
application.
[4] Thirdly, the court
was incorrect in finding that the applicant’s attorneys only
became aware of the statutory time period
for bringing a review
application when advised by the third respondent’s attorneys
some two years later.
The judgment
[5] The court found that
it was inconceivable that a firm of attorneys which had assisted the
applicant in referring the dispute
to the Commission for Conciliation
and Mediation (CCMA), represented him in the arbitration and had
received the award from the
CCMA, was not aware of the requirement of
six weeks stipulated in s 145(1)(a) of the LRA for the launching of a
review application.
This showed negligence on the part of the
attorneys, a fact admitted by Mr Mndezi, counsel for the applicant.
[6]
Despite the fact that the applicant had not given a satisfactory
explanation for the late filing of his statement of claim and
which,
by itself, would entitle the court to refuse the application for
condonation,
[2]
the court considered the prospects of success and relying on judicial
authority concluded that the conditions did not exist for
the
reinstatement of the applicant.
[7] In whichever way the
applicant’s attorneys became aware of the statutory period for
the filing of a review application
is not important.
The legal
principles
[8]
The Constitutional Court in
Mohlomi
v Minister of Defence
[3]
said:
‘
Rules
that limit the time during which litigation may be launched are
common in our legal system as well as many others. Inordinate
delays
in litigating damage the interests of justice…such rules
prevent procrastination and those harmful consequences of
it. They
thus serve a purpose to which no exception in principle can cogently
be taken.’
[9]
Bosielo AJ sitting in the Constitutional Court in
Grootboom
v National Prosecuting Authority & another
[4]
remarked:
‘
I
need to remind practitioners and litigants that the rules and courts’
directions serve as a necessary purpose. Their primary
aim is to
ensure that the business of our courts is run effectively and
efficiently. Invariably this will lead to the orderly management
of
our courts’ rolls, which in turn will bring about the
expeditious disposal of cases in the most cost effective manner.’
[5]
The
learned justice said that ‘[n]on-compliance [with rules of
court or directions] has bedevilled our courts at various levels
for
a long time’
[6]
and that
it ‘is axiomatic that condoning a party’s non-compliance
with the rules of court or directions is an indulgence.
The court
seised with the matter has a discretion whether to grant
condonation’
[7]
on the
‘facts of that particular case’.
[8]
He continued:
‘
It
is now trite that condonation cannot be had for the mere asking. A
party seeking condonation must make out a case entitling it
to the
court’s indulgence. It must show sufficient cause. This
requires a party to give a full explanation for the non-compliance
with the rules or the court’s directions. Of great
significance, the explanation must be reasonable enough to excuse the
default.’
[9]
[10]
The granting of condonation is the exercise of a discretion by a
court.
[10]
The decision in
this regard is not appealable simply because another court could
reasonably differ. As such it is not open to an
appeal unless the
court committed a misdirection in the exercise of its discretion.
[11]
[11]
In
NUMSA
& others v Fibre Flair CC t/a Kango Canopies
[12]
the
Labour Appeal Court set out the principles that a court will have to
consider in deciding whether to interfere with a
discretion. The
applicant will have to show:
‘…
that
the court a quo acted capriciously, or upon a wrong principle, or in
a biased manner, or for insubstantial reasons, or committed
a
misdirection or an irregularity, or failed to exercise its
discretion, or exercised its discretion improperly or unfairly.’
[13]
[12]
The court continued that the fact that the Labour
Appeal Court might have ‘reached a somewhat different
conclusion from the
court
a quo,
would
not in itself justify a departure’ from the ‘general rule
against interference’ in regard to the exercise
of the court’s
discretion. This was because policy considerations, especially with
the need for expeditious resolution of
labour disputes, discouraged
the Labour Appeal Court from interfering with decisions which entail
the exercise of a discretion.
[13]
Willis JA in
Coates
Brothers Ltd v Shanker & others
[14]
asserted
that a simple misdirection is insufficient and recalled the dicta of
the appeal court in
S
v Dhlumayo & others
1948
(2) SA 677
(A) at 702 that the misdirection ‘must be of such a
nature, degree or seriousness that it shows that the Court did not
exercise
its discretion at all or exercised it improperly or
unreasonably’. The learned judge went on to say:
‘…
I
accept that [the court] may have erred in its findings as to the
prospects of success and the weight given thereto. Let it be
assumed…that these errors were made by the court a quo. They
would not, however, constitute misdirections of such a kind
that they
would warrant interference with the discretion exercised by the court
a quo.’
[14]
In
A
Hardrodt (SA) (Pty) Ltd v Behardien & others
[15]
the
Labour Appeal Court concluded that the court a quo ‘should not
have condoned the late filing of the review on the
basis of the
totally inadequate explanation’.
[15]
Steenkamp J in
Masuku
v Score Supermarket (Pty) Ltd
[16]
wrote that
‘
an
appeal court will not exercise its own discretion regarding [the
exercise of a discretion] on appeal afresh, unless it is first
satisfied that the court a quo committed a misdirection in the nature
described, so as to warrant, in effect, the setting aside
of that
decision.’
Evaluation
[16]
The onus to satisfy the court that condonation should be granted is
on the applicant.
[17]
[17]
The applicant has not based his application on any of the grounds
listed by the Labour Appeal Court in In
NUMSA
& others v Fibre Flair CC t/a Kango Canopies
[18]
.
Indeed, the applicant does not say that I had exercised my discretion
improperly or unreasonably or that I had misdirected myself.
[17]
I am satisfied that I considered all the relevant factors in
exercising a judicial discretion not to grant condonation. The
distinction between
dies
and
dies non
cannot assist the
applicant because his attorneys should have been familiar with the
rules. I took into account the admitted gross
negligence and
incompetence of the applicant’s attorneys which alone should
have been sufficient to refuse condonation. But
I went ahead and
considered the applicant’s prospects of success which I found
to be lacking.
[18]
Accordingly, there is no reasonable prospect of the Labour Appeal
Court concluding that the court a quo had exercised its discretion
improperly or unreasonably.
[19] For these reasons,
the application is refused.
Order
1.
The application for leave to appeal the
judgment of 6 January 2014 is refused.
2.
There is no order as to costs.
_____________________
SEEDAT AJ
Acting Judge of the
Labour Court of South Africa
[1]
The
application for leave to appeal was decided in chambers in terms of
rule 30(3A) and clause 15 of the Consolidated Practice
Directive of
2013.
[2]
SA
Post Office Ltd v Commission for Conciliation, Mediation &
Arbitration & others
(2011)
32 ILJ 2442 (LAC) at para 22
[3]
[1996] ZACC 20
;
1997
(1) SA 124
(CC) at para 11
[4]
(2014)
35 ILJ 121 (CC); see
eThekwini
Municipality v Ingonyama Trust
2013
(5) BCLR 497 (CC)
[5]
At
para 32
[6]
At
para 21
[7]
At
para 20
[8]
At
para 35
[9]
At
para 23
[10]
Grootboom
v National Prosecuting Authority & another
(2014)
35 ILJ 121 (CC) at para 20;
A
Hardrodt (SA) (Pty) Ltd v Behardien & others
(2002)
23 ILJ 1229 (LAC) at para 5
[11]
Masuku
v Score Supermarket (Pty) Ltd
(2013)
34 ILJ 147 (LC) at para 10
[12]
(2000)
21 ILJ 1079 (LAC)
[13]
See
Coates
Brothers Ltd v Shanker & others
(2003)
24 ILJ 2284 (LAC) at [15];
Masuku
v Score Supermarket (Pty) Ltd
(2013)
34 ILJ 147 (LC) at para 10
[14]
(2003)
24 ILJ 2284 (LAC) at para 6
[15]
(2002)
23 ILJ 1229 (LAC) at para 21
[16]
(2013)
34 ILJ 147 (LC) at [12]
[17]
A
Hardrodt (SA) (Pty) Ltd v Behardien & others
(2002)
23 ILJ 1229 (LAC) at para 6
[18]
(2000)
21 ILJ 1079 (LAC)