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[2015] ZALCJHB 321
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Bredenkamp v Tshwane University of Technology (JS387/08) [2015] ZALCJHB 321 (20 August 2015)
IN
THE LABOUR COURT OF SOUTH AFRICA JOHANNESBURG
JUDGMENT
Not Reportable
Case No: JS 387/08
In the matter between:
F
BREDENKAMP
APPLICANT
and
TSHWANE UNIVERSITY OF
TECHNOLOGY
RESPONDENT
Heard:
04 June 2014
Delivered:
20 August 2015
JUDGEMENT ON LEAVE TO
APPEAL
SHAI AJ
Introduction
[1]
On
the 8 October 2014 I issued a judgement in the following terms:
“
a.
The
application of the condonation of the state filing of the Applicant
is dismissed with costs.”
The Applicant has now
applied for leave to appeal against the whole judgement.
[2]
The application is opposed by the Respondent
[3]
In
addition to the application to appeal against the whole judgement the
Applicant applies for leave to file a supplementary affidavit.
Application
for leave to file a supplementary affidavit
[4]
In
the judgment referred to in paragraph 1 above I had ruled that the
said supplementary affidavit was not properly before the Court
and
did not form part of the pleadings. The reason was that no proper
application was made for its admission. As it stands only
the
affidavit in support of the ‘application’ has been filed
.It is not accompanied by a notice as it is required.
The
‘application’ is therefore not properly before the court.
Secondly the Court had already made a decision on the
same document
which is subject of application for leave to appeal. On the basis of
the above the Court is inclined not to grant
leave to file a
supplementary affidavit.
Leave
to appeal against the whole judgement
[5]
The grounds of application for leave to appeal are stated as follows:
“
1.
The learned Judge erred in not granting Condonation to Applicant for
the filing of the statement of case on 12 June
2008; a different
court may reasonably come to a different finding and grant
condonation to the Applicant.
2. The learned judge
erred in finding that the Statement of Case was only filed with the
Labour Court on 12 August 2008
whereas it was in fact with the Court
on 12 June 2008.
3. Regarding the status
of the application of the Condonation attached to the Statement of
Case, the learned Judge erred
in finding that it was filed on 24
August 2008 whereas it was in fact filed with the statement of Case
on 12 June 2008.
4. The learned Judge erred in
stating that the Affidavit in respect of Condonation was not numbered
whereas it was attached to the
Statement of Case which in fact has a
case number.
5. The learned Judge
erred in finding that an applicantion for Condonation should comply
with the requirements for
applications in terms of Rule 7 of the
Labour Court Rules whereas it is trite law that such applications can
by way of affidavit
be attached to statement of case or a response
thereto.
6. The learned Judge
erred in finding that the application for Condonation was
approximately 27 months late whereas
it was in fact only filed five
weeks late on 12 June 2008 instead of 4 May 2008.
7. The learned Judge
erred in finding that the period of 27 months was unexplained and
excessive whereas the real period
of delay was only five weeks which
was fully explained in the first Affidavit for Condonation, dated 11
June 2008, paragraphs 3-6.(a
vacancy existed)
8. The learned Judge
erred in finding that the prospects of success of the Applicant are
not good whereas from
his supplementary affidavit it appears
that no substantive fairness (not appointed in a vacancy) nor
procedural fairness (no consultations)
were meted out to him. An
application for leave to file this supplementary affidavit
accompanies this application for leave to
appeal.
9. The learned Judge
erred in finding that the answering affidavit of Respondent objecting
to the Applicant’s
application for Condonation, was only 12
days late whereas it was in fact 28 months late, i.e. from 12 June
2008 until 7 September
2010.
10. The learned Judge erred
in finding that there was a plausible explanation for the lateness
whereas there was only an explanation
for the irrelevant “12
days” but no explanation for the remaining 27 months and
consequently the Condonation application
of the Respondent was
erroneously granted.
11. The learned Judge erred in
finding that the Respondent will suffer more prejudice than the
Applicant if not granted the opportunity
to defend the claim whereas
the opposite represents in reality the true position factually. If it
was found that prejudice favours
the Applicant, the Respondent would
still have the opportunity to defend the claim of the Applicant
whereas the opposite is not
true.
12.
The learned judge erred also in finding that the Respondent’s
prospects of success are good whereas the dismissal of the
Applicant,
as indicated above, was neither substantively (a vacancy existed),
nor procedurally fair (no consultations)”.
The
test applicable in application for leave to appeal
[6] The test in the
application for leave to appeal was stated as follows in the case of
Van der Merwe v Du Plessis, (1999) 20 ILJ 1305 LC
paragraph 4
at 1306:
‘
Leave
to appeal is granted only if this Court is satisfied that another
Court might reasonably reach a conclusion different from
that
appealed against.”
[7] In
National Union
of Metal Workers of SA v Jumbo Products CC
[1996] ZASCA 87
;
1996 (4) SA 735
SCA at 742
A-B
the Supreme Court of Appeal described the test as one based
on whether there is a reasonable prospect that a court of Appeal may
come to a different conclusion and held the trial judge to have been
wrong.
[8] Having read the
submissions from both parties and the judgement herein, and
having applied my mind thereon, and taking
the principles outlined
above into account, I am satisfied that another court may not
reasonably come to a different conclusion
than the one this court
reached.
[9] In the premise I make
the following order:-
a)
The
application for leave to file a supplementary affidavit is dismissed
with costs.
b)
The
application for leave to appeal against the whole judgement is
dismissed with costs.
__________________
Shai AJ
Judge
of the Labour Court of South Africa
APPEARANCES:
Adv Fanie van Jaarsveld
FOR THE APPLICANT:
Van de Merwe
Associates
FOR THE
RESPONDENTS:
Adv Hein Gerber
Instructed
by:
Glarinda Kügel Attorneys