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[2016] ZALCJHB 65
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Fidelity Springbok Security Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1853/08) [2016] ZALCJHB 65 (24 February 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
CASE NO: JR 1853/08
In
the matter between:
FIDELITY
SPRINGBOK SECURITY
SERVICES
(PTY)
LTD
APPLICANT
And
THE COMMISSION FOR
CONCILIATION,
MEDIATION
AND ARBITRATION
FIRST RESPODENT
COMMISSIONER
MAPALO TSATSIMPE
SECOND RESPONDENT
L
GREYLING
THIRD RESPONDENT
Heard:
11 September 2015
Delivered:
11 September 2015
Edited:
24 February 2016
RULING:
LEAVE TO APPEAL (EX-TEMPORE)
VAN
NIEKERK J
[1]
This is an application for leave to appeal argued yesterday.
The judgment appealed against is one issued by Acting Judge Sesele
on 15 March 2012.
[2]
As I remarked during the course of argument. it is difficult to
consider applications for leave to appeal against a judgment
delivered by another Judge, but be that as it may, I have come to the
conclusion that there is no merit in the application and
that the
application for leave to appeal should be dismissed.
[3]
My reasons are as follows. The review application which gave to
rise to the judgment was dismissed by Acting Judge
Sesele on
15 March 2012. An application for leave to appeal was filed
on 23 April 2012, that is some 9 days
out of time and the
applicant has applied for condonation for the late filing of the
application for leave to appeal.
[4]
It is not necessary, in my view, the decision to which I have come
for me to make any formal ruling in that application.
But 9
days is not an inordinate delay and in my view the reason proffered
for the delay are acceptable. What I am concerned about
is the fact
that this matter reaches this court more than 3 years after the
application for leave to appeal was filed. I
appreciate that
not all of that delay can be laid at the feet of the applicant.
It is clear from the facts before me that
the file at some stage went
missing and that the applicant had some difficulties, a consequence
in filing the application for leave
to appeal. The application
for condonation for the late filing would be in the application gives
some indication of what
transpired between April 2012 and 10
September 2015, the date on which the application for leave to appeal
was filed and the
date on which this application was argued.
[5]
I am not satisfied having regard to the material before me that the
applicant has prosecuted this application with due diligence.
For that reason alone, the application for leave to appeal ought to
be dismissed.
[6]
It is incumbent on applicants in applications such as the present to
ensure that the matter is enrolled for hearing timeously
and that
there is no unreasonable delay in prosecuting the application. That
must be so, even in circumstances where the court
file appears to be
missing, or where other obstacles are placed in the path of an
applicant.
[7]
In any event, in regard to the merits of the application, I am not
satisfied that another court would come to a different conclusion
to
that which the learned Acting Judge came.
[8]
The threshold for review is set high and as the Labour Appeal Court
is remarked more than once, it is not often that an applicant
in an
application for review will succeed in having a ruling set aside
particularly a ruling as was made in the present instance
to refuse a
postponement. The facts of the matter and these are undisputed,
is that the postponement sought was not made
in accordance with the
CCMA Rules and that the basis for the application for postponement,
i.e. that witnesses needed to be located
was not a proper basis in
circumstances where the applicant had had some time to locate and
secure the witnesses that it intended
to call.
For
those reasons then the order is as follows:
1.
The
application for leave to appeal is dismissed.
ANDRÉ VAN
NIEKERK
JUDGE OF THE LABOUR COURT