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[2016] ZALCJHB 8
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Mkhandawire v Air Traffic Navigation Services (Pty) Ltd; In re: Air Traffic Navigation Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1383/12) [2016] ZALCJHB 8 (13 January 2016)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case no: JR1383/12
In the matter between:
WILFORD WANDEKHA
MKHANDAWIRE
Applicant
and
AIR TRAFFIC
NAVIGATION SERVICES (PTY) LTD
Respondent
In
re
:
AIR TRAFFIC
NAVIGATION SERVICES (PTY) LTD
Applicant
and
COMMISSION FOR
CONCILIATION, MEDIATION AND ARBITRATION
First Respondent
NASIMA RAFFEE
N.O.
Second Respondent
WILFORD WANDEKHA
MKHANDAWIRE
Third Respondent
VIRTUAL HR (PTY)
LTD t/a CONTRACT ACCOUNTS
Fourth Respondent
Date: 13 January
2016
Decided
in chambers.
JUDGMENT
- APPLICATION FOR LEAVE TO APPEAL
TLHOTLHALEMAJE, J
[1]
This
application for leave to appeal was launched pursuant to a judgment
that was delivered on 16 September 2015. In the judgment,
the
arbitration award issued under case number GAJB33921-11 by the
Commissioner was reviewed, set aside and substituted with a
finding
that the CCMA had lacked the necessary jurisdiction to determine the
dispute referred to it by the Applicant.
[2]
Aligned
to the application for leave to appeal is an application to condone
its late filing. In terms of Rule
30
of the Rules of this Court, an application for leave to appeal to the
Labour
Appeal Court must be made
and the grounds for appeal furnished within 15 days of the date of
the judgment or order against which
leave to appeal is sought, except
that the court may, on good cause shown, extend that period.
[3]
The
above Rule should be read together with clause 15.2 of this Court’s
Practice Manual which provides that;
“
Within 10
days of the filing of the application for leave to appeal, the party
seeking leave must file its submissions in terms
of Rule 30(3A) and
the party opposing the leave must file its submissions five days
thereafter. An application for leave to appeal
will be decided by the
judge in Chambers on the basis of the submissions filed in terms of
Rule 30 (3A), unless the judge directs
that the application be heard
in open court.”
[4]
The
notice of application for leave to appeal was filed on 26 October
2015, some 24 days outside of the time frames contemplated
in Rule 30
(3) of the Rules of this Court. The legal principles applicable to
applications for condonations are well known as set
out in
Melane
v Santam Insurance Co Ltd
[1]
as follows;
“
In deciding
whether sufficient cause has been shown, the basic principle is that
the Court has a discretion, to be exercised judicially
upon a
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually relevant
are the
degree of lateness, the explanation therefor, the prospects of
success and the importance of the case. Ordinarily these
facts are
interrelated, they are not individually decisive, save of course that
if there are no prospects of success there would
be no point in
granting condonation. Any attempt to formulate a rule of thumb would
only serve to harden the arteries of what should
be a flexible
discretion. What is needed is an objective conspectus of all the
facts. Thus a slight delay and a good explanation
may help to
compensate prospects which are not strong. Or the importance of the
issue and strong prospects of success may tend
to compensate for a
long delay. And the respondent's interests in finality must not be
overlooked.”
[5] In explaining the
delay, the applicant averred that on 15 October 2015, he had attended
at the Court only to discover that judgment
had been handed down on
16 September 2015. He had immediately contacted his erstwhile
attorneys of record (Werkmans) and there
was no agreement in taking
the matter forward. According to the Applicant, his erstwhile
attorneys were equally not aware of the
judgment as their addresses
were never on record in the matter, and that only his postal address
was on record.
[6] The Applicant
subsequently sought the assistance of the Wits Law Clinic and the
Legal Aid Board to lodge an appeal but was unsuccessful.
On 19
October 2015 he had sought the assistance of the
Pro Bono
office and was advised that he could not be assisted as the matter
was at the stage of an appeal. The Applicant thereafter met
with his
new set of attorneys (S Mosomane Attorneys) on 20 October 2015 who
then attended to the preparation of the applications
for leave to
appeal and condonation, which were filed on 26 October 2015. S
Mosomane Attorneys subsequently withdrew as the Applicant’s
attorneys of record on 4 December 2015.
[7] The Applicant further
averred that a delay of twelve days in lodging the application for
leave to appeal was not excessive,
that he has overwhelming prospects
of success in another court coming to a different finding, that the
Respondent would not suffer
any prejudice if condonation were to be
granted, and consequently that he had shown good cause.
[8] Both applications
before the court remain unopposed. A delay of twenty-four days (not
twelve as contended by the Applicant)
in lodging the application for
leave to appeal is not excessive in the extreme. In regards to the
reasons proffered for the delay
however, it is found that it is
implausible that the Applicant or his erstwhile attorneys of record
could not have known of the
date that the judgment was to be
delivered. A notification in this regard was sent to the
representatives of the parties and to
the Applicant by e-mail on 15
September 2015, and it is not correct as alleged by the Applicant
that the Court did not have his
erstwhile attorneys’ details on
record.
[9]
Notwithstanding the implausible and unacceptable nature of the
explanation proffered, a further consideration is whether the
Applicant has prospects of success with his application for leave to
appeal. This requires a consideration of the grounds upon
which leave
to appeal is sought. In this regard, the Applicant submitted that;
a)
the
Court erred in finding that he was not an Employee of the Respondent.
He had averred that there was overwhelming evidence to
this effect;
b)
the
Court erred in finding that he had not submitted proof of his
qualifications in order for them to be verified;
c)
that
the Court erred by not considering that the Respondent had failed to
deal with allegations raised by the him in his answering
affidavit in
the review application;
d)
the
Court erred in finding that the Commissioner had committed a
reviewable irregularity;
e)
the
Court erred in substituting the finding of the Commissioner instead
of referring the matter back to the CCMA for a hearing
de
novo
.
[10] Having had regard to
the facts of this case and the legal principles applicable to the
nature of the Applicant’s employment
as dealt with at length in
the judgment, and further having had regard to the grounds relied
upon in seeking leave to appeal and
submissions made in that regard,
I am not persuaded, having reflected on my judgment, that the
Applicant has reasonable prospects
of success with his appeal.
[11] It is trite that the
test applicable in applications for leave to appeal is whether there
are reasonable prospects that another
court may come to a different
finding as reached by the court a
quo
. In this case, the award
was reviewed and set aside in circumstances where it was found that
there was no legal basis for a finding
made by the Commissioner that
the Applicant was an employee. It therefore followed that where there
was no employment relationship,
there would have been no basis for a
finding to be made that there was a procedurally and substantively
unfair dismissal. These
issues were succinctly dealt with in the
judgment and no purpose would be served in repeating them herein.
[12] In conclusion, it is
accepted that the delay in lodging the application for leave to
appeal is not excessive. The explanation
proffered for the delay is
however less than satisfactory. Crucially though, there are no
reasonable prospects that based on the
grounds relied upon in seeking
leave to appeal, another court would come to a different finding to
that arrived at in my judgment.
In the light of these factors, it is
not necessary to deal with other considerations pertinent to
applications for condonations,
and accordingly, the following order
is made;
Order:
i.
The
application for condonation for the late filing of the application
for leave to appeal is dismissed.
ii.
The
application for leave to appeal is dismissed.
__________________
Tlhotlhalemaje, J
Judge
of the Labour Court of South Africa
[1]
1962 (4) SA 531
(A)