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[2016] ZALCCT 49
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Meyndeki v MEC for Health Western Cape (C480/2011) [2016] ZALCCT 49 (18 July 2016)
REPUBLIC
OF SOUTH AFRICA
Not
reportable
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
C
ase
no: C 480/2011
In
the matter between:
SIVUYILE
MEYNDEKI
APPLICANT
and
MEC
FOR HEALTH WESTERN
CAPE
RESPONDENT
Date
of judgment: 18 July 2016 (in chambers)
RULING: LEAVE TO
APPEAL
VAN
NIEKERK J
[1] This is an
application for leave to appeal against a judgement delivered by this
court on 12 October 2015. The application for
leave to appeal was
filed only on 2 March 2016. The applicant has applied for condonation
for the late filing of the application
for leave to appeal, and I
deal with this issue below. The delay in the issuing of the present
ruling relates to the fact that
for reasons that are not apparent,
this file was made available to me only during the second week of
July 2016.
[2] The judgment records
the relevant facts and I do not intend to repeat them here. For
present purposes, it is sufficient to note
that the applicant was
dismissed for misconduct after having been found guilty on a number
of charges of misconduct, which included
drunkenness and his
abandoning of an ambulance on the N2 freeway. After the respondent
had led its witnesses, the arbitrator concluded
that the respondent
had failed to discharge the onus to show that the applicant’s
dismissal was fair and went on to grant
absolution from the instance.
As I noted in the judgment, on the basis of the applicable authority,
it is not open to commissioners
to grant absolution from the
instance. Further, and in any event, the record of the proceedings
under review makes it clear that
the first respondent elected not to
lead evidence and closed his case. At no stage did he ask for
absolution nor make any submissions
in this regard. In my judgment, I
held that the manifest in of law committed by the commissioner
renders the award reviewable and
that in any event, it could not be
said, having regard to the record, that the decision to which the
arbitrator came was a reasonable
decision having regard to the
evidence that served before him.
[3] The application for
condonation for the late filing of the application for leave to
appeal was filed some 75 days late in circumstances
where the
application was filed in this court on 1 March 2016 but never served
on the state attorney. It is apparent from the application
that the
applicant took some 2 ½ months after delivery of the judgement
before he contacted the union in relation to a possible
review. This
in itself is an inordinate period for which there is no satisfactory
explanation thereafter, the applicant approached
the law faculty at
the local university for assistance and a firm of attorneys who
ultimately agreed to assist him. While he submits
that the delay is
that of his advisers, this is clearly not the case. A significant
portion of the delay was caused by the applicant’s
tardiness
are not because he received
pro bono
assistance. In so far as
the applicant’s prospects of success in the application for
leave to appeal are concerned, in my
view, these are minimal having
regard to the material error of law committed by the commissioner
when he granted absolution in
circumstances where he simultaneously
declared his award to be final and binding. Insofar as prejudice is
concerned, the applicant
was dismissed in August 2010, almost 6 years
ago. The respondent’s interest in finality far outweighs any
prejudice that
may be caused to the applicant by refusing to condone
the late filing of the application for leave to appeal. In the face
of an
unacceptable explanation for any inordinate delay, and no
prospects of success in the main application, there is no basis on
which
the late filing the present application should be condoned.
[4] For these brief
reasons, I make the following order:
1.
The
application for leave to appeal is dismissed.
ANDRÉ VAN NIEKERK
JUDGE
OF THE LABOUR COURT