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[2015] ZALCJHB 312
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Mosikili v Mass Cash (Pty) Ltd v t/a Qwaqwa and Others (JR1045/2011) [2015] ZALCJHB 312 (15 September 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
no: JR1045/2011
In
the matter between:
BENJAMIN
LEHLOHONOLO
MOSIKILI
Applicant
and
MASS
CASH (PTY) LTD t/a QWAQWA
CASH
&
CARRY
First Respondent
COMMISSIONER
NQOBILE KENNETH DUBE
Second Respondent
COMMISSION
FOR CONCILIATION, MEDIATION &
ARBITRATION
Third Respondent
Decided:
15 September 2015
Decided
in Chambers.
RULING – LEAVE
TO APPEAL
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
Judgement was delivered on 27 August 2014 in terms of which the
Applicant’s application to review and set aside the arbitration
award issued by the Second Respondent was dismissed. On 26 February
2015, a Notice of Appeal was filed in terms of which the Applicant
seeks to appeal against the whole of that judgment. An application
for condonation was also filed on the same date in respect of
the
late filing of the leave to appeal. Both applications are opposed.
[2]
In terms of Rule 30 (3) of the Rules of this Court, the application
for leave to appeal must be made within 10 days after the
date on
which the reasons are given, except that the court may, on good cause
shown, extend that period.
[3]
Judgment having been delivered on 27 August 2014, the application for
leave to appeal ought to have been filed on no later than
8 September
2014. The delay in filing the application is therefore about 172
days, which is excessive in the extreme.
[4]
Prior to dealing with the applications, a few concerns raised by the
First Respondent in regard to the manner with which the
applications
were served needs to be dealt with. The complaint is that having
delivered the application for condonation together
with the
application for leave to appeal on 26 February 2015, these
applications were nevertheless not served on it. The First
Respondent
became aware of these applications in March 2015 when it was so
advised by the Judge’s Associate, Ms Davies.
[5]
The First Respondent’s attorneys of record had formally
responded that service of these applications was not received
and Ms
Davies had then scanned and e-mailed copies to them. Despite the
applications not having been properly served on the First
Respondent,
its attorneys served and filed answering affidavits to the
condonation application on 2 June 2015.
[6]
As at 17 July 2015, the Applicant had not properly served the
applications on the First Respondent, nor had proof of service
in
that regard been filed. On 30 July 2015 the Applicant had filed and
served his applications for leave to appeal together with
an
application for condonation for its late filing on the First
Respondent and in Court. The second application for condonation
is
completely different from the first application initially filed on 26
February 2015.
[7]
No attempts have been made by the Applicant to furnish an explanation
as to the reasons the initial applications were not properly
served
on the First Respondent. To the extent that this is the case, and
further to the extent that both applications were ultimately
properly
served on 30 July 2015, this implies that the delay is beyond the 172
days pointed out above.
[8]
It is now trite that whether the applicant has shown good cause
involves an exercise of a discretion after a consideration of
a
variety of factors including the degree of lateness, the explanation
therefor, the prospects of success and the importance of
the case.
The factors to be considered are interrelated and are not
individually decisive. However, where there are no prospects
of
success, there would be no point in granting condonation. A slight
delay and a good explanation may nevertheless help to compensate
prospects which are not strong, whilst the importance of the issue
and strong prospects may compensate for a long delay. The
Respondent’s
interests in finality on the matter is equally
important
[1]
.
[9]
It is equally trite that without a reasonable and acceptable
explanation for the delay, the prospects of success should be deemed
immaterial and without prospects of success, no matter how good the
explanation for the delay, an application for condonation should
be
refused
[2]
.
Ultimately, the interests of justice should be an overall
consideration when dealing with applications for condonation
[3]
.
[10]
As already indicated, the delay in filing the application for leave
to appeal is excessive in the extreme. The Applicant’s
explanation for the delay was that his previous attorneys of record
did not inform him of the date of handing down of the judgment,
and
it was only when he uplifted the Court’s file on his own that
he realised that judgment was handed down five months earlier.
He had
then on his own launched the application for leave to appeal and was
advised by Ms Davies that he had not complied with
the Rules of this
Court in bringing the application. He then sought legal advice in
order to comply with the Rules of the Court.
He submitted that
although the delay was excessive and that he had contributed to it,
it was not due to negligence.
[11]
I am in agreement with the First Respondent’s contentions that
the application for condonation has no merit; that the
delay was so
excessive that it was inexcusable; that the Applicant had not
proffered a reasonable and complete explanation for
the delay, and
clearly that his prospects of success in the main application are
weak.
[12]
The Applicant’s explanation for the delay is lacking in detail
and not all the facts and circumstances relating to the
delay were
set out in the application, nor had each period of the delay been
accounted for
[4]
.
No explanation as to when attempts were made to establish from the
Applicant’s previous attorneys whether and when the judgment
was handed down. It is not stated when the Applicant had on his own
uplifted the file, and when his mandate with his attorneys
was
terminated. It is also improbable that his attorneys could not have
known or informed him of the handing down of the judgment
in that as
evident from the court’s file, those attorneys had always made
enquiries through correspondence about when judgment
was to be
delivered prior to August 2014.
[13]
As also correctly pointed out on behalf of the First Respondent,
there is a limit to which a litigant can be absolved from
the
inaction of his or her own chosen legal representatives, and at most,
it would have been expected of the attorneys to have
informed him of
the judgment as soon as it was delivered, or at most, for the
Applicant to have demonstrated what steps he had
taken in ensuring
that his previous attorneys informed him in time of the judgment.
[14]
On the whole, in the light of the explanation being thin in
particularity and substance that explanation amounts to no
explanation
at all
[5]
. Other
factors important in exercising a discretion are whether the
application for condonation was filed without delay as soon
as the
Applicant became aware of the need to file such an application
[6]
.
In this regard, the Applicant had initially filed both applications
in February 2015, and he was informed that service was not
in
compliance with the Rules of this Court. It nevertheless took him
until July 2015 to make any attempts at effecting proper service.
Even then, his contention that he had to seek legal advice is thin in
particularity in that it is not known from whom and when
such advice
was sought.
[15]
In
Molia
[7]
,
it was further stated that where in an application for condonation,
the delay is excessive and no explanation has been given for
that
delay or an “explanation” has been given but such
“explanation” amounts to no explanation at all,
it would
not be necessary to consider the prospects of success. In his
application for condonation, the Applicant merely stated
that he had
reasonable prospects of success on appeal. No attempt was made to
substantiate what those prospects were.
[16]
An analysis of the grounds upon which leave to appeal is sought
nevertheless also reveals no prospects that the Labour Appeal
Court
may come to a different conclusion to that arrived at by the court a
quo
.
This being the test
[8]
, the
Applicant has not demonstrated that on proper grounds, he has
prospects of success on appeal, and that those prospects are
not
remote, but have a realistic chance of succeeding. There is no sound
or rational basis for any conclusion to be made that there
are
prospects of success on appeal
[9]
.
[17]
The circumstances giving rise to the order were fully canvassed in
the judgment and no purpose will be served by repeating
the factual
background in that regard. The shortcomings of the grounds of appeal
are succinctly dealt with in the First Respondent’s
opposition
to the application and can be summarised as follows;
17.1 In
contending that the Court erred in certain respects, the applicant’s
grounds are not only repetitious
but also vague and unintelligible.
17.2 A
number of grounds upon which the review of the award of the Third
Respondent were dealt with extensively
in the judgment, and in
particular, whether there was inconsistent application of the rules
and discipline; whether there were
rules in place regulating the
conduct in question that led to the dismissal; and the issue of the
alleged bias on the Commissioner.
17.3
Even more startling is that the Applicant alleges that his
contentions regarding unfair discrimination were
disregarded by the
Court. This issue was nevertheless raised in the context where the
dispute and award under review pertained
to an alleged unfair
dismissal.
[18]
In the light of the above, it is concluded that, the delay in filing
the application for leave to appeal is excessive in the
extreme. The
explanation proffered in that regard amounts to no explanation at
all. The Applicant’s prospects of succeeding
on appeal are
non-existent. In the light of these factors, the First Respondent is
entitled to finality on the matter, and it follows
that the interest
of justice dictate that the application for condonation in respect of
the leave to appeal should not be granted,
especially where it is
apparent that it is the First Respondent that stands to suffer
extreme prejudice if a contrary ruling were
to be made. Accordingly,
the following order is made;
Order:
i.
The
application for condonation for the late filing of an application for
leave to appeal is dismissed.
ii.
The
application for leave to appeal is dismissed.
iii.
There
is no order as to costs.
___________________
Tlhotlhalemaje,
AJ
Acting Judge of the
Labour Court of South Africa
[1]
Melane
v Santam Insurance Co. Ltd
1962
(4) SA 531
(A) at 532B-E
[2]
NUM v Council
for Mineral Technology
1999
3 BLLR 209
(LAC) at p211 paragraph G-H
[3]
Brummer v
Gorfil Brothers Investments (Pty) Ltd
[2000] ZACC 3
;
[2000] (2) SA 837
(CC) at 839 F
[4]
See
NUMSA
and another v Hillside Aluminium
[2005]
6 BLLR 601 (LC)
[5]
Moila v Shai
N.O. and Others
(2007) 28 ILJ 1028 (LAC) at para 34
[6]
See
Meintjies
v HD Combrinck (Edms) Bpk
1961 (1) SA 262
(A) at 263 H-264B.
[7]
ibid
[8]
Minister of
Safety and Security and Another v Madyibi
(1034/2004)
[2008] ZAECHC 180
(30 October 2008)
[9]
See
S
v Smith
2012 (1) SACR 567
(SCA) at para [7]