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[2016] ZALCJHB 20
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Magumbo v Nkomati Joint Venture and Others (JR2257/12) [2016] ZALCJHB 20 (26 January 2016)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR 2257/12
In the matter between:
SIMON MAGUMBO
Applicant
and
NKOMATI JOINT
VENTURE
COMMISSION FOR
CONCILIATION, MEDIATION AND ARBITRATION
COMMISSIONER DAVIS
MAILA
N.O.
First Respondent
Second Respondent
Third Respondent
Date: 26 January
2016
Decided
in chambers.
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
TLHOTLHALEMAJE, J
Introduction:
[1]
The Applicant’s application to review
and set aside the arbitration award issued by the Third Respondent
was dismissed in
terms of a judgment handed down on 16 September
2015. He has since lodged an application for leave to appeal against
that judgment.
The application is opposed by the First Respondent.
[2]
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.
[3]
The application for leave to appeal is
defective on a number of fronts. Judgment having been delivered on 16
September 2015, the
purported application for leave to appeal was
only filed on 3 November 2015. Thus there is a delay of some 33 days.
Furthermore,
the Applicant had simply filed written heads of
argument/submissions in terms of Rule 30(3A) read with paragraph 15.2
of the Practice
Manual of the Labour Court on 3 November 2015 without
an application for condonation in respect of the late filing of the
application
for leave to appeal.
[4]
It is also not clear as to when the
application for leave to appeal was served on the First Respondent’s
attorney of record.
There are two copies of affidavits of service as
filed by the Applicant. In the first one filed as filed in this Court
on 3 November
2015, the deponent (Irene Makwanya), averred that ‘the
Notice of Motion, affidavits and Annexures/Statement of claim with
Annexures’ were served on the First Respondent by way of
telefax on 12 October 2015. In the second similar affidavit of
service, filed on the same day in this court, another deponent,
(Innocent Ndebele), averred that the same documents were served
on
the First Respondent by way of telefax on 2 November 2015. A
further difficulty with the purported affidavits of service
is that
the details contained in the first affidavit are different from those
on the attached fax transmission report in that the
date and time
reflected do not correlate.
[5]
In the light of the above, and more
particularly in the light of the Applicant’s failure to seek
condonation in respect of
the failure to comply with the applicable
time frames in lodging applications for leave to appeal, there is no
proper application
before the court to consider, and accordingly, the
application ought to be dismissed with costs.
Order:
The application for leave
to appeal is dismissed with costs.
________________
Tlhotlhalemaje, J
Judge of the Labour Court
of South Africa