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[2016] ZALCJHB 11
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Pule v North West Parks and Tourism Board; In re: Transport and Allied Workers Union of South Africa obo Matjila and Others v North West Parks and Tourism Board (JS881/09) [2016] ZALCJHB 11 (13 January 2016)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JS881/09
In
the matter between:
GLADYS PULE
Applicant
and
NORTH WEST PARKS
AND TOURISM BOARD
Respondent
In
re
:
TRANSPORT AND
ALLIED WORKERS UNION OF SOUTH AFRICA obo GUSTAF MATJILA AND 26
OTHERS
Applicant
and
NORTH WEST PARKS
AND TOURISM BOARD
Respondent
Decided
in chambers
Delivered
on: 12 January 2016
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
TLHOTLHALEMAJE,
J
[1]
Judgment
in this matter following upon a trial was handed down on 2 June 2015.
In the judgment, the dismissal of the individual
applicants was
declared to have been automatically unfair as contemplated in section
187 (1) (a) of the Labour Relations Act
[1]
.
The respondent was ordered to reinstate the individual applicant
retrospectively from 14 December 2008. Back-pay due to the individual
applicants was however limited to six months’ salary,
calculated at their rate of pay as at 14 December 2008.
[2]
Only
one of the individual applicants, Ms. Gladys Pule (now represented by
a new set of attorneys) seeks leave to appeal against
the order
relating to the amount of back-pay. Pule is of the view that the
Court should have granted her full back-pay. Accompanying
the
application for leave to appeal is an application for condonation for
its late filing.
[3]
The
respondent (also represented by a new set of attorneys) has
ostensibly opposed both applications. It is said ostensibly in that
firstly, notices to oppose both applications were filed on 8 July
2015. However, no answering affidavit was filed in respect of
the
application for condonation. Instead, the respondent had on 1
December 2015, filed a notice consisting of copies of its written
heads of argument and submissions in regards to condonation in
respect of the late filing of those written heads of argument. This
document is incomplete and can hardly be construed as a proper
application for condonation. In essence then, there is no proper
opposition to application for leave to appeal.
[4]
In
terms of Rule 30 (2) of the Rules of this Court, if leave to appeal
has not been made at the time of judgment or order, an application
for leave 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. The application for leave to appeal in
this case
was filed on 26 June 2015, which was some 9 days out of time after
judgment was handed down on 2 June 2015.
[5]
The
principles applicable to applications for condonation are well
established
[2]
. Thus whether the
applicant has shown good cause involves 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.
These factors are interrelated and are not on
their own individually
decisive. However, where there are no prospects of success, there
would be no point in granting condonation.
Furthermore, 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. Ultimately, the
interests of justice would determine
whether the application for
condonation should be granted
[3]
.
[6]
In
explaining the delay, Pule in her founding affidavit averred that
having obtained a copy of the judgment from her erstwhile attorneys
(who had represented the individual applicants on
pro
bono
basis), she was more concerned about the order in respect of the
back-pay granted to her. Having taken up her concerns with her
then
attorneys, she was advised that no leave to appeal would be launched
on her behalf. She then approached her new attorneys
of record on 24
June 2015, who could only file the application on that date.
[7]
It
is accepted that a delay of about nine days in filing the application
for leave to appeal is not excessive. Nevertheless, Pule
is still
required to furnish a reasonable and acceptable explanation for the
delay. It is trite that an applicant seeking condonation
for
non-compliance with the set time frames must give a complete account
for each period of the delay
[4]
.
In this case, it is my view that Pule’s explanation is lacking
in detail and does not give a complete account of what had
caused the
delay between 2 June 2015 when the judgment was handed down, and 24
June 2015 when she had ultimately secured a new
set of attorneys to
represent her. She had not explained as to when she was informed by
her erstwhile attorneys of record that
they would not launch an
application for leave to appeal. Even if she was informed on 2 June
2015 that no such an application would
be launched, there is no
explanation at all for the delay until 24 June 2015.
[8]
Other
than Pule’s failure to proffer a reasonable and/or acceptable
explanation for the delay, the issue is whether she has
prospects of
success in respect of her application for leave to appeal. It is
trite that even if the delay is not excessive no
purpose would be
served in granting condonation where the applicant’s prospects
of success are minimal.
[9]
In
considering Pule’s prospects of success, I have had regard to
the grounds upon which she sought leave to appeal, and I
am not
convinced that there are reasonable nor remote prospects that the
Labour Appeal Court would come to a different conclusion
to that
arrived at by the court
a
quo
.
Pule’s primary ground is that the allegations and/or charges
preferred against her related to incidents alleged to have
taken
place on 27, 29 and 30 November 2008 and on 1 December 2008. Her
contention was that at that time, she was on annual leave
from 26
November 2008 to 3 December 2008. She further submitted that her
evidence in this regards was not refuted during the trial.
[10]
In
the light of the above contentions, Pule submitted that the Court had
erred in not awarding her full back-pay from the date of
dismissal as
she was not supposed to have been suspended, charged and dismissed in
the first place. She further submitted that
the granting of six
months back-pay offended her constitutional right to fair labour
practices.
[11]
Having
reflected on my judgment, it is apparent from the evidence led during
trial that Pule’s contentions in regards to being
on leave at
the time of the incidents that led to the dismissal were improbable.
Her evidence was contradicted by Shibane’s
testimony on behalf
of the respondent, to the effect that he had seen and spoken to her
during the course of the strike action,
as she was one of the
representatives or spokesperson of the striking employees.
[12]
Other
than her evidence having been contradicted, it is trite that the
principles regarding the granting of a remedy involves an
exercise of
a judicial discretion. The legal principles in this regards as
espoused in
Aviation
Services (Pty) Ltd v CCMA & others
[5]
and other authorities were sufficiently dealt with in the judgment.
In exercising my discretion, a variety of factors were considered
as
can be gleaned from paragraphs [59] to [65] of the judgment, and I
fail to understand how Pule expects the Labour Appeal Court
to
interfere with the judgment when she had not indicated in what
respects that discretion was not exercised judicially and properly.
[13]
In
the light of the above, and further having considered all material
pertinent to the application before the court, it is concluded
that
Pule has not proffered a reasonable and acceptable explanation for
the delay
albeit
that delay is not excessive. Having considered the grounds upon which
she seeks leave to appeal, I am not persuaded that there
are
reasonable prospects of success in the application for leave to
appeal. Notwithstanding the fact that the respondent’s
opposition to the applications is not properly before the court, I am
nevertheless of the view that it (respondent) is entitled
to finality
on the matter given its protracted history. Furthermore, the interest
of justice dictate that the application for condonation
in respect of
the leave to appeal should not be granted.
Order:
i.
The
late filing of the application for leave to appeal is not condoned.
ii.
The
application for leave to appeal is also dismissed.
iii.
There
is no order as to costs.
_______________
Tlhotlhalemaje, J
Judge
of the Labour Court of South Africa
[1]
Act 66 of 1995
[2]
See
Melane
v Santam Insurance Co. Ltd
1962 (4) SA 531
(A) at 532B-E
[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]
(2008) 29 ILJ 2507
(CC) at para [48]