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[2016] ZALCCT 25
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Hanekom v CCMA and Others (C867/13) [2016] ZALCCT 25 (1 August 2016)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Not
reportable
Of
interest to other judges
case
no: C 867/13
In
the matter between:
HENDRIK
HANEKOM
Applicant
and
CCMA
First
Respondent
COMMISSIONER
F A CRAFFORD
Second
Respondent
APPLETHWAITE
FARM (PTY) LTD
Third
Respondent
Delivered
:
1 August 2016
RULING
ON LEAVE TO APPEAL
STEENKAMP
J
Introduction
[1]
The
applicant, Mr Hendrik Hanekom,
[1]
seeks leave to appeal against my judgment of 12 November 2014. I
ruled that Mr Hanekom’s chosen representative on the day,
the
South African Fisheries and General Workers’ Union did not have
locus
standi
to represent him; and that his application to re-enrol a matter that
his trade union and the nominal applicant in the dispute,
HOCAFAWU,
had previously withdrawn, was dismissed. I made no order as to costs.
Background
facts
[2]
The applicant -- cited as “HOCAFAWU
on behalf of Hendrik Hanekom” -- by way of a notice dated 6
August 2014, sought
permission to re-open and re-enrol the matter
under case number C867/2013 (i.e. the case number under which this
application for
leave to appeal was filed).
[3]
The Applicant did not file an affidavit
with his notice. The facts relevant to the application for
re-enrolment are thus to be sought
in the affidavit deposed to by Mr
Herman Conradie (”Conradie”), the attorney acting for the
Third Respondent (Applethwaite
Farm) in that application and what is
set out in the papers filed in respect of this matter.
[4]
Hanekom referred an unfair dismissal
dispute to the CCMA (the First Respondent). That dispute was set down
to be arbitrated on 25
September 2013. The proceedings were presided
over by the Second Respondent, Commissioner F A Crafford. At
that stage, Hanekom
was represented by Mr Daniel Olyn, a
representative from the South African Parastatal and Tertiary
Institutions Union (“SAPTU”).
[5]
In the course of the proceedings the
Commissioner obtained consent from the parties to attempt to
conciliate the dispute. The result
was the conclusion of an agreement
in full and final settlement of the dispute referred to the CCMA.
Hanekom signed the agreement
himself, despite being represented by a
trade union. Part of the settlement involved Applethwaite Farm (the
third respondent) paying
a sum of money to Mr Hanekom. It paid the
agreed sum on 30 October 2013 and there is no indication that Hanekom
has repaid it.
[6]
On
8 November 2013 the Applicant, at that stage represented by HOCAFAWU,
delivered an application to review the settlement agreement.
The
Third Respondent, Applethwaite Farm, filed delivered an Answering
Affidavit. Its attorney, Conradie, also contacted Hanekom
on 26
November 2013 for details of his representative at HOCAFAWU. Hanekom
gave him the cell number of a Mr Rhode. Following some
communication
from Conradie in December 2013 Rhode indicated telephonically that
the application to review the settlement agreement
would be withdrawn
and, on 9 January 2014, delivered
[2]
a notice of withdrawal in the following terms:
“
The
Applicant in the matter withdraws his application to the Honourable
Court unconditionally. The Applicant was not forced or intimidated
to
withdraw the matter, but do it out of his free will and after
consultation with legal counsel.”
[7]
On 6 August 2014 Hanekom applied to re-open
and re-enrol the matter under case number C687/2013. The matter was
enrolled on 12 November
2014. At that hearing I ruled that the trade
union purporting to represent Hanekom on the day of the hearing (the
South African
Fishermen and General Workers’ Union) had no
locus standi
to represent him and dismissed the application to re-enrol with no
order as to costs.
[8]
On 21 November 2014 Hanekom – citing
only himself as applicant -- served a document entitled “Leave
to Appeal”
on Third Respondent. The document was not served on
the Third Respondent’s attorneys of record and was not filed
with the
Court until 25 June 2015. However, on 25 November 2014 the
Third Respondent filed a notice of opposition in response to the
document
served by the Applicant.
[9]
On 6 July 2015 the Registrar issued a
directive reminding the parties to comply with the provisions of
paragraph 15 of the Practice
Manual of the Labour Court. On 28 August
2015 the Registrar issued a further directive that in order to
process the application
for leave to appeal, the applicant had to
obtain the transcription of the
ex
tempore
judgment of 12 November 2014.
She directed Hanekom to ensure that the transcription was filed by 4
September 2015 or the file would
be archived. The Applicant failed to
comply with that directive and, by way of a further directive of 15
September 2015, the file
was archived.
[10]
By way of an application on 26 November
2015 Hanekom apparently sought to substitute himself as the applicant
party in the proceedings
by providing changes in contact details.
Nowhere in the application was there any mention of, or a request
for, substitution. Be
that as it may, he also sought an indulgence in
the form of a further opportunity to file the transcription. He was
granted two
weeks from 15 February 2016 to file the transcription. He
was then granted a further indulgence via a directive from the
Registrar
of 16 March 2016 to file the transcription by 1 April 2016.
He failed to do so, instead filing the transcription with the court
on 18 April 2016.
Evaluation
Late
filing of application for leave to appeal
[11]
An
application for leave to appeal must be made within15 days from the
date of the order against which an appeal is sought.
[3]
In
this case the Applicant served the document entitled “Leave to
Appeal” on Third Respondent on 21 November 2014. That
document
was not filed with this Court until June 2015, well outside of the
15-day period.
[12]
The Applicant has not applied for
condonation for his failure to comply with the Labour Court Rules.
The Court has no jurisdiction
to hear the application and it should
be dismissed on that basis alone.
Late
filing of submissions in support of application for leave to appeal
[13]
Even if the late filing of the application
on 25 June 2015 were to be condoned, the Applicant’s
submissions in support of
the application were filed late and he has
not sought condonation. Paragraph 15 of the Practice Manual of
the Labour Court
requires applicants to file their submissions in
support of an application for leave to appeal within 10 days of
filing the application.
The Applicant in this case filed his
submissions on 17 August 2015, some 38 days outside of the period
permitted.
Late
filing of the transcription of the
ex
tempore
judgment
[14]
The transcription of the
ex
tempore
judgment was filed on 18 April
2016, some 11 court days after it was supposed to have been filed as
directed by the Registrar after
the Court had granted the applicant a
number of extensions.
The
merits of the application for leave to appeal
[15]
In any event, there is no reasonable
prospect that another court will come to a different conclusion on
the merits.
[16]
The application for leave to appeal is
based on the following grounds:
16.1
The Court denied Hanekom representation
from a registered trade union;
16.2
The Court denied an official from a
registered trade union the opportunity to represent him;
16.3
The Applicant was given short notice of the
Labour Court proceedings on 12 November 2014;
16.4
The Court refused to postpone the matter in
order for the Applicant to seek alternative representation when he
requested an opportunity
to do so;
16.5
The Applicant did not have sufficient time
to prepare for the hearing given that his application for legal aid
was denied on 5 November
2014;
16.6
The trade union that represented Hanekom,
HOCAFAWU, does not exist in the Western Cape, something of which the
Third Respondent
is aware.
[17]
The Applicant has not appealed against the
Court’s decision to dismiss his application to re-enrol his
review. If that is
so, this application is moot given that the
dismissal of the application to re-enrol stands regardless of
whatever becomes of the
Court’s other decisions.
[18]
In
any event, none of the points raised above relate to appealable
issues. Before turning to the particular points raised by the
Applicant it is useful to briefly set out the relevant legal
principles.
[4]
[19]
In terms of s173(1)(a) of the LRA the
Labour Appeal Court can determine appeals against the final judgments
and final orders of
this Court.
[20]
Courts
have often grappled with deciding which decisions are appealable and
which (usually referred to as rulings) are not. It can
generally be
accepted that a (final) judgment or order is one that
[5]
:
20.1
is final in effect and not subject to
alteration by the court of first instance;
20.2
is
definitive of the rights of the parties in the sense that it grants
definitive and distinct relief to either of the parties.
[6]
;
and
20.3
has the effect of disposing of at least a
substantial portion of the relief claimed in the proceedings.
[21]
With this in mind I consider the points
raised in the application for leave to appeal. At the outset it
should be noted that the
application for leave to appeal does not
indicate what is being appealed against i.e. whether it is the whole
of the judgment or
certain orders made by the Court.
[22]
The points referred to at paragraphs 16.3,
16.5 and 16.6 above are allegations that might have supported an
application for postponement.
They are not judgments or orders of the
Court and therefore need not be considered as part of this
application.
[23]
The points in 16.1 and 16.2 are two sides
of the same coin, i.e. whether the court ought to have allowed
Hanekom the opportunity
to be represented by the South African
Fishermen and General Workers’ Union, despite the fact that
HOCAFAWU is cited as the
applicant, acting on behalf of Hanekom.
[24]
It would thus appear that the Applicant
seeks leave to appeal the decisions refusing him to be represented by
the South African
Fishermen and General Workers’ Union and
refusing to postpone the matter (“the decisions”).
[25]
Those decisions are not appealable.
Firstly, they were not definitive of the rights of the parties.
Secondly, they did not have
the effect of disposing of
any
of the relief claimed by the Applicant, let alone a substantial
portion of it.
[26]
Even
if those decisions were appealable, there are no merits to the
application for leave to appeal them. These decisions fall within
the
discretion of the Court. An appeal court may therefore not determine
whether they were correct. Rather, it is restricted to
deciding
whether the court
a
quo
“acted
capriciously, or acted upon a wrong principle, or in a biased manner,
or for insubstantial reasons, or committed a
misdirection or an
irregularity, or exercised its discretion improperly or unfairly.”
[7]
[27]
The Applicant, in his submissions, does not
allege that the Court failed to meet this test. Rather, the
submissions suggest that
the Court decided incorrectly.
[28]
In any event, there is nothing, taking into
account the evidence before the Court and the submissions by the
parties, to suggest
that the Court acted in the manner set out in
paragraph 28 above. There are no reasonable prospects that an appeal
court would
set aside the decisions on an application of that test.
[29]
And even if the test to be applied to the
decisions were wider, i.e. whether there are reasonable prospects of
another court coming
to a different conclusion, there is no basis for
leave to appeal.
[30]
As far as the decision on representation is
concerned:
30.1
In
his submissions in this application the Applicant confirms that the
review application was brought by Mr Rhode of HOCAFAWU on
his
behalf;
[8]
30.2
When Conradie contacted the Applicant on 26
November 2013 for details of his representative at HOCAFAWU he was
supplied with the
cell number of Mr Rhode;
30.3
HOCAFAWU was designated as the Applicant’s
representative in the notice of motion for the re-enrolment of the
application
for review and the address indicated there is the same as
that on the notice of motion for the initial (withdrawn) review
application;
30.4
Neither the Applicant nor HOCAFAWU gave any
indication that HOCAFAWU’s mandate was terminated and it
remained the Applicant’s
representative in these proceedings
until that occurred;
30.5
The Applicant failed to provide any
evidence that he was a member of the South African Fishermen and
General Workers’ Union
or that the area and industry in which
he worked falls within its registered scope;
30.6
No attempt was made to place the South
African Fishermen and General Workers’ Union on record as the
Applicant’s representative.
Rather, the ‘notice of
appointment of union official on record’ filed on 11 November
2014 purported to substitute a
Mr Titus as the Applicant’s
representative in his personal capacity as opposed to designating the
trade union as the Applicant’s
representative. Mr Titus, union
official or not, had no standing to represent Hanekom in his personal
capacity;
30.7
Hanekom was not denied the right to be
represented. However, his representatives should have taken proper
steps to place themselves
on record as such, they ought to have
satisfied the Court that they were entitled to represent him and
should have known that they
might be required to do so.
[31]
As far as the refusal to postpone is
concerned:
31.1
The
Applicant did not, in court, raise any concerns regarding a lack of
time to prepare for the hearing or relating to alleged short
notice.
The Court could thus not have regard to those in deciding not to
postpone the hearing;
[9]
31.2
The Applicant did not prepare an
application for postponement with an affidavit setting out the basis
for such. Annexure B to the
application for leave to appeal is not
evidence that is properly before the Court;
31.3
The Labour Relations Act is predicated on
expeditious dispute resolution and the Labour Court must where
possible avoid unnecessary
delays;
31.4
There was a delay of some 8 months between
the date of the withdrawal and the application to re-enrol;
31.5
The Applicant’s failure to have
proper representation in court was as a result of the inadequate
assistance he received from
his chosen representatives. For the
reasons given above they failed to take the necessary steps to ensure
that Hanekom was properly
represented. If they were not permitted to
assist him they should have referred him to someone who could;
31.6
The application to re-enrol had very
limited, if any, prospects of success: amongst other things,
Hanekom’s designated representative,
by whose decisions he was
bound, withdrew the review application. That application was, in any
event, without merit. The Applicant’s
version was improbable
and was directly contradicted by the Third Respondent’s
evidence;
31.7
The application to re-enrol (and the
application to review) amounts to an abuse of the court process. The
Applicant accepted the
payment made by the Third Respondent in terms
of the settlement agreement and gave no indication that he would
repay it. Yet he
persisted in pursuing a review application which
would have the effect of setting aside the agreement in terms of
which he received
the money. He cannot simultaneously approbate and
reprobate;
31.8
No purpose would have been served by
further delay to allow the Applicant to secure alternative
representation.
Conclusion
[32]
The application for leave to appeal must
fail.
Costs
[33]
I did not order costs
a
quo.
In exercising the discretion not
to order costs, I took into account that Hanekom is a farmworker and
that he may have been badly
advised. The latter consideration is no
longer valid. He chose to pursue this application – that also
did not have any merit
– after taking further advice from an
attorney. He would have been advised of the risks of incurring a
costs order against
him in this application, although he was not
ordered to pay the costs in his earlier unsuccessful application.
That has resulted
in Applethwaite Farm having to incur further legal
costs, including the costs of counsel. In law and fairness it should
not have
to bear those further costs.
Order
The
application for leave to appeal is dismissed with costs.
_______________________
Anton
Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
B Guy
(attorney).
THIRD
RESPONDENT:
C S Bosch
Instructed by
Fairbridges Wertheim Becker.
[1]
Mr Hanekom has chosen to cite only himself as the applicant in this
application, although the citation in the court
a
quo
was
“HOCAFAWU obo Hendrik Hanekom”.
[2]
It seems that the notice was served on the Farm’s attorneys on
that day, although it was only foiled at court on 8 April
2014.
[3]
Rule
30(2) of the Rules for the Conduct of Proceedings in the Labour
Court
[4]
I am indebted to Mr
Bosch
,
for Applethwaite Farm, for his summary of the applicable legal
principles.
[5]
See
Sacca
(Pty) Ltd v Thipe & another
(1999) 20
ILJ
2845 (LAC) at 2848.
[6]
See
Publications
Control Board v Central News Agency Ltd
1977 (1) SA 717
(A) at 745A and
Willis
Faber Enthoven (Pty) Ltd v Receiver of Revenue and Another
[1992] 4 All SA 62
(AD) at 64.
[7]
Coates
Brothers Ltd v Shanker & others
[2003]
12 BLLR 1189
(LAC) at para 5 and
National
Union of Metalworkers of SA & others v Fibre Flair CC t/a Kango
Canopies
(2000) 21
ILJ
1079
(LAC) at 1081A-1082A. With respect to postponements being a
discretionary matter and the application of the test formulated
here
see
Madnitsky
v Rosenberg
[1949]
2 All SA 391
(A).
[1949] 2 All SA 391
(A) at 397-398 and
Momentum
Life Assurers Ltd v Thirion
[2002] 2 All SA 62
(C) at 67.
[8]
Paragraph
15 of the Applicant’s Submissions.
[9]
It
is worth noting that the annexure attached to the application for
leave to appeal does not show any discrepancy between the
time that
the Third Respondent had to prepare and that allowed to the
Applicant. On 4 November 2014 both received confirmation
that the
hearing would proceed on 12 November 2014.