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[2016] ZALCJHB 35
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Mhlongo v South African Revenue Service (J1915/09) [2016] ZALCJHB 35 (21 January 2016)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: J1915/09
In
the matter between:
CHARLOTTE
CONNIE
MHLONGO
Applicant
and
SOUTH
AFRICAN REVENUE
SERVICE
Respondent
Heard:
21 January 2016 (In Chambers)
RULING:
APPLICATION FOR LEAVE TO APPEAL
MALAN
AJ:
Introduction
[1]
In this matter the applicant seeks leave to
appeal against the whole of my written judgment and order handed down
on 11 September
2015. In the judgment, I dismissed the
applicant’s application in terms of s 77(3) read with s 77A(e)
of the Basic
Conditions of Employment Act, 75 of 1997 (‘
BCEA’
).
In the application, the applicant sought an order declaring the
decision by the respondent to suspend and subsequently
dismiss her on
19 May 2009 to be unlawful. The reasons appear from my
judgment.
[2]
The application for leave to appeal is
opposed by the respondent. Both parties have delivered written
submissions as provided for
in terms of Rule 30 (3A) as read with
paragraph 15 of the Practice Directive.
[3]
I did not deem it necessary for this
application for leave to appeal to be heard in open court and
considered the application in
chambers on the basis of the
aforementioned submissions.
Condonation
[4]
The applicant’s application for leave
to appeal was delivered four (4) days outside of the prescribed time
period. The
applicant seeks condonation for the aforesaid delay
and elected to address the reasons for this delay in her application
for leave
to appeal and subsequent written submissions. Save as
aforesaid, no substantive application was made on notice supported by
an affidavit. The respondent has taken issue with the aforesaid and
submitted that consequently, the application for leave to appeal
was
not properly before this court.
[5]
This is a court of equity and fairness and
the court has a judicial discretion whether or not to grant such an
indulgence when it
comes to non-compliance with its Rules.
Having regard to the long history of the matter, I regard the delay
as immaterial
and can see no reason why condonation should not be
granted.
[6]
In the premises, the applicant’s
application for condonation is granted.
Grounds
for leave to appeal
[7]
It
is trite that the test in deciding whether or not to grant leave to
appeal is the traditional test. It requires a judge
to ask
whether there is a reasonable prospect that another court may come to
a different conclusion than that of the court
a
quo
.
[1]
[8]
In so far as the applicant seeks leave to appeal against my
judgment and order relating to her application for referral of the
matter
to oral evidence, I am not convinced that there is a
reasonable prospect that another court may come to a different
conclusion
in this regard. In the premises, leave to appeal
against my judgment and order on this ground is dismissed.
[9]
Although the applicant
seeks leave to
appeal against the whole of my written judgment and order
it
is not clear from the applicant’s application for leave to
appeal or her submissions whether or not she also specifically
seeks
leave to appeal against my judgment and order dismissing her
application for a postponement. However, paragraph 7.1
of her
application for leave to appeal briefly makes some reference to this
unsuccessful application. In the circumstances,
I regard this
also as a ground upon which the applicant seeks leave to appeal.
I am also not persuaded that there exists
a reasonable prospect that
another court may come to a different conclusion in this regard.
In the premises, leave to appeal
against my judgment and order in
this regard is also dismissed.
[10]
Lastly, in so far as the applicant seeks
leave to appeal against the balance of my judgment and order, more
particularly relating
to findings that the court lacked jurisdiction
to determine the matter, I am of the view that
there is a
reasonable prospect that another court may come to a different
conclusion in this regard.
Order
[11]
In the premises, I make the following
order:
11.1.
The application for leave to appeal against
my judgment and orders relating to the applicant’s application
for referral of
the matter to oral evidence and application for a
postponement is dismissed.
11.2.
The application for leave to appeal against
the balance of my judgment and order is granted.
11.3.
Costs of the application for leave to
appeal is cost in the appeal.
__________________
L
M Malan, AJ
Acting
Judge of the Labour Court of South Africa
[1]
Mofokeng & Others v JAC Pallets Africa CC & Others (2010) 31
ILJ 686 (LC) at p693, para 15; See also
Ngcobo
v Tente Casters (Pty) Ltd (2002) 23 ILJ 1442 (LC) at 1443A-B;
Tsotetsi v Stallion Security (Pty) Ltd (2009) 30 ILJ 2802
(LC) at p
2804, para 14; Ngcobo v Tente Casters (Pty) Ltd (2002) 23 ILJ 1442
(LC); Karbochem Sasolburg (A Division of Sentrachem
Ltd) v Kriel &
Others
(1999)
20 ILJ 2889 (LC) at 2890B.