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[2017] ZALCJHB 26
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CAP Personnel Placement (Pty) Ltd v NUMSA obo Skhosana and Others (JR2223/2013) [2017] ZALCJHB 26 (30 January 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
CASE
NO: JR 2223/2013
In
the matter between
CAP
PERSONNEL PLACEMENT (PTY) LTD
Applicant
(First Respondent)
and
NUMSA
o.b.o DANIEL SKHOSANA
First
Respondent (Appellant)
PANELIST
/ COMMISSIONER MAHOMED RAFFEE
N.O
Second
Respondent
METAL
ENGINEERING INDUSTRIES
BARGAINING
COUNCIL
Third
Respondent
Heard:
Considered in chambers
Delivered:
30 January 2017
LEAVE
TO APPEAL RULING
BALOYI
AJ
INTRODUCTION
1.
The Applicant, Daniel Skhosana with assistance of his trade union
approached this Court for leave to appeal the judgment delivered
by
myself
ex tempore
on 17
th
December 2015. In the
said judgment an order
reviewing
and setting aside of condonation ruling was made coupled with a
substitution order to the effect that his
condonation application
is dismissed.
The said review application was brought by
the First Respondent. The content of the file denotes no filing
of opposition papers
by the First Respondent. More of this
appear herein below.
THE
APPLICATION
2.
The application for leave to appeal was filed on 25
th
May
2016 containing grounds upon which leave to appeal is sought.
For reasons set out below I see no need to have the said
grounds
restated herein. What deserves no omission is that when the
application was filed the period of approximately five
months had
lapsed. Correspondence exchanged between the parties’
legal representatives was copied to the Registrar
hence same made it
to the Court file.
3.
It is apparent from the correspondence that the Applicant was
reminded of the need to apply for condonation of the late filing
of
the application. Having received full reasons for the
ex
tempore
judgment on 10
th
May 2016 was the Applicant’s
reaction to the reminder. According to the Applicant the filing
of the application on
25
th
May 2016 was not out of time.
THE
LEGAL FRAME WORK
4.
I have not been fortunate to find any authority that supports the
Applicant’s refusal to apply for condonation and none
has been
referred to in the Applicant’s written submissions. It is
however of high relevancy to visit the provisions
of Rule 30(3) which
read as follows;
“
(3)
If
the reasons or the full reasons for the court’s order are given
on a date later
than the date of the judgment or
order, the application for leave to appeal must be made within 10
days after the date on which
the reasons are given, except that the
court may, on good cause shown, extend that period.”
5.
In the light of the judgment being delivered on the date of the
sitting of the Court, certainly there were no reasons for the
judgment to be anticipated on a later date. In respect of this
matter the proper interpretation of Rule 30(3) read with Rule
30(2)
is set out in section 14.5 of the Practice Manual which read thus;
“
14.5 When ex
tempore judgments are handed down, it is the responsibility of the
parties to arrange for the transcript of the judgment.
Awaiting
the transcript does not delay the time periods from continuing to
run. The time periods run from the day the judgment
was handed
down.”
CONCLUSION
6.
In this regard there is no better way to convey that the Applicant
was bound to apply for condonation under the circumstances.
In
the absence of application for condonation, the application for leave
to appeal deserves no further consideration than
dismissal.
What is also concerning is that despite the First Respondent’s
reminder, the Applicant remained resistant
to the fact that there was
a need to apply for condonation.
7.
Although the application is not opposed, it cannot be denied that the
First Respondent incurred costs in the application for
leave to
appeal, which costs were kept minimal by undertaking to oppose as
soon as the Applicant filed condonation application.
To this
date no condonation application has been filed. In the main
judgment I have referred to the
Ellerine
Holdings
[1]
judgment which is undoubtedly relevant herein. Without
hesitation it would seem that each and every legal step taken by the
Applicant is affected by the lateness syndrome. This surely has
a frustrating effect on the First Respondent towards getting
finality
to the matter. A cost order may not be a perfect solution for
the situation at hand, however this is a deserving
case for the
granting of the cost order.
ORDER
8.
In the premises the following order is made.
8.1. The application for leave to
appeal is dismissed with costs.
___________________
Baloyi
AJ
Acting
Judge of the Labour Court of South Africa
Appearances
:
Determined in chambers
[1]
2002 23 ILJ 1282 LC Paragraph 14