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[2016] ZALCCT 12
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Shelton v Statutory Council for the Print Newspaper and Packaging Industries and Others (C650/14) [2016] ZALCCT 12 (31 March 2016)
REPUBLIC
OF SOUTH AFRICA
Not
reportable
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
C
ase
no: C 650/14
In
the matter between:
Andrew James
SHELTON
Applicant
and
THE STATUTORY
COUNCIL FOR THE PRINT NEWSPAPER AND PACKAGING INDUSTRIES
First Respondent
DAVE WILSON N.O.
Second Respondent
BIDVEST DATA (PTY)
LTD
Third Respondent
Delivered
:
31 March 2016
RULING
ON LEAVE TO APPEAL
STEENKAMP
J
Introduction
[1]
The applicant, Mr Shelton, seeks leave to
appeal against my judgment of 13 October 2015.
[2]
The application was only delivered on 29
January 2016. He also applies for condonation for the late filing of
the application. And
he applies for condonation for the late filing
of his written submissions in terms of rule 30(3A). Those submissions
were delivered
on 26 February 2016.
The test for granting
leave to appeal
[3]
The
test to be applied in an application for leave to appeal is that
referred to in s 17 of the Superior Courts Act.
[1]
Section 17(1) provides:
“
Leave
to appeal may only be given where the judge or judges concerned are
of the opinion that –
(a)
(i) the appeal would
have a reasonable prospect of success; or
(ii)
there is some other compelling reason why the appeal should be heard,
including conflicting judgements on the matter under
consideration;
(b)
the decision sought on appeal does not fall within the ambit of
section
16 (2) (a); and
(c)
where the decision sought to be appealed does not dispose of all
the
issues in the case, the appeal would lead to a just and prompt
resolution of the real issues between the parties.
[4]
The
traditional formulation of the test requires the court to determine
whether there is a reasonable prospect that another court
may come to
a different conclusion to that reached in the judgment
a
quo
.
The use of the word “would” in s17(1)(a)(i) is indicative
of a raising of the threshold since previously, all that
was required
for the applicant to demonstrate was that there was a reasonable
prospect that another court might come to a different
conclusion.
This is not a test to be applied lightly – the Labour Appeal
Court has recently had occasion to observe that
this court ought to
be cautious when leave to appeal is granted, as should the Labour
Appeal Court when petitions are granted.
The statutory imperative of
the expeditious resolution of labour disputes necessarily requires
that appeals be limited to those
matters in which there is a
reasonable prospect that the factual matrix could receive a different
treatment or where there is some
legitimate dispute on the law.
[2]
Condonation
[5]
I
will consider the applications for condonation using the well-known
principles in
Melane
v Santam Insurance Co Ltd.
[3]
Application for leave
to appeal
[6]
Firstly, the applicant does not have good
prospects of success on appeal. The arbitrator reached a conclusion
that a reasonable
arbitrator could reach.
[7]
The application was delivered about three
months after the 15 day period in rule 30(3A)(1) had expired. It is
an excessive delay.
[8]
The applicant’s explanation is that
he had broken two ribs on 16 October and he was “unable to
move”. He does
not adequately explain why he could not give his
attorney oral instructions on the application for leave to appeal for
a period
of three months. The only other part of the explanation is
that his attorneys, Cornel Stander and Duncan Garland, were on leave
from mid-December to mid-January. And then, at an unspecified date,
his attorneys briefed counsel to draft the application, but
their
chosen counsel got married on 23 January 2016 (three months after the
application for leave to appeal was due). It is a poor
explanation.
Written submissions
[9]
The applicant only filed his written
submissions on 26 February 2016. His explanation is that his
attorney withdrew on 17
February (a week after the submissions were
due). The same attorney is now back on record.
[10]
It is a poor explanation in the context of
a litany of condonation applications – in the review
application, the late filing
of his heads of argument in that
application, the application for leave to appeal, and the late filing
of submissions in this application.
Conclusion
[11]
The applicant’s prospects of success
in the application for leave to appeal are poor. The delay in
delivering the application
is excessive. The explanation is also
poor.
[12]
For all these reasons, the applications
should be dismissed. The applicant persisted in bringing further
applications with little
or no prospects of success. In law and
fairness, costs should follow the result.
Order
[13]
I therefore rule as follows:
13.1
The application for condonation for the
late filing of the application for leave to appeal is dismissed.
13.2
The application for condonation for the
late filing of the applicant’s submissions is dismissed.
13.3
The application for leave to appeal is
dismissed.
13.4
The applicant is ordered to pay the third
respondent’s costs.
_______________________
Anton Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
Instructed
by:
Morné
Aggenbach
Duncan
Garland of Cornel Stander attorneys.
THIRD
RESPONDENT:
Edwin
Ellis of Edward Nathan Sonnenbergs.
[1]
Act 10 of 2013.
[2]
See
the judgment by Davis JA in
Martin
& East (Pty) Ltd v NUM
(2014) 35
ILJ
2399 (LAC), and also
Oasys
Innovations (Pty) Ltd v Henning & another
[2015] ZALCCT 65.
[3]
1962 (4) SA 531
(A).