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2015
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[2015] ZALCJHB 345
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Sithole v Mac Gregor and Others (JR3082/12) [2015] ZALCJHB 345 (7 October 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JR 3082/12
In
the matter between:
FIHLOKWAKHE
SITHOLE
Applicant
and
COMMISSIONER ROB
MAC GREGOR
First Respondent
CCMA
Second Respondent
TIBER BRANDS ALBANY
BAKERY
Third Respondent
Decided: 7 October
2015
Decided
in chambers
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
HULLEY,
AJ
[1]
The
applicant applies for leave to appeal against my judgment dated 16
July 2015 in which I dismissed with costs his application
to review
and set aside an arbitration award issued by the first respondent.
[2]
Although
the application for leave to appeal itself was served and filed
timeously, the written submissions were delivered outside
the time
period prescribed in terms of paragraph 15.2 of the Practice Manual
of the Labour Court. For this delay the applicant
seeks
condonation.
[3]
Insofar
as the filing of the written submissions is concerned, Rule 30(3A) of
the Labour Court Rules stipulates that unless the
judge from whom
leave to appeal is sought otherwise directs, the parties’
respective submissions must be “
delivered
on or before a date fixed by the judge
”.
[4]
Paragraph
15.2 of the Practice Manual, no doubt with a view to creating
certainty, removes the discretion which Rule 30(3A) grants
to the
judge from whom leave to appeal is sought, and itself stipulates a
time period. It is a failure to comply with this
time period of
which the applicant has fallen foul.
[5]
I
am not sure whether paragraph 15.2 of the Practice Manual is
intra
vires
,
but do not intend deciding this matter on that basis. I am
inclined to grant condonation.
[6]
Having
regard to the fact that the application for leave to appeal was filed
timeously, there is no apparent prejudice (outside
of the desire to
finalise the matter), suffered by the third respondent, and the delay
(28 days), while not insignificant, is not
so significant as to
warrant the matter being decided on that basis alone. While I
do not fully accept the explanation provided,
I do not think this is
a matter which warrants its finalisation on the basis of the question
of condonation. I will accordingly
consider the application on
its merits.
[7]
I
have considered the application for leave to appeal as well as the
heads of argument which have been filed. In my view,
there is
no reasonable prospect that another court may come to a different
conclusion. Speaking generally, the applicant
appears to
misunderstand the nature of the function which I, sitting as a court
of review, was performing. Although I was
in general agreement
with the findings made by the arbitrator (and said so), given that I
was performing a review function even
if I disagreed with the
arbitrator, I was not entitled to set aside his findings; I could do
so only if I was satisfied that no
reasonable arbitrator could come
to the same conclusion.
[8]
The
applicant has approached this application for leave to appeal as
though I was sitting as a trial court and challenges my findings.
What the applicant needs to demonstrate is that there is a reasonable
prospect that another court may come to the conclusion that
the
arbitrator arrived at a conclusion which no reasonable arbitrator
could have arrived at. That he has failed to demonstrate.
[9]
In
all the circumstances the following order is made:
I.
Condonation
for the late filing of the written submissions is granted.
II.
The
application for leave to appeal is dismissed.
III.
There
is no order as to costs.
__________________
Hulley, AJ
Acting
Judge of the Labour Court of South Africa