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[2017] ZALCJHB 77
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NEHAWU obo Peach v Department of Agriculture: Free State and Others (JR761/14) [2017] ZALCJHB 77 (8 March 2017)
REPUBLIC
OF SOUTH AFRICA
Not
reportable
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNEBURG
JUDGMENT
C
ase
no: JR 761/14
In
the matter between:
NEHAWU
obo VUYO PEACH
Applicant
and
DEPARTMENT
OF AGRICULTURE: FREE STATE
First respondent
Mzondi
MOLAPO N.O.
GPSSBC
Second respondent
Third respondent
Delivered:
8 March 2017
Ruling
on leave to appeal
STEENKAMP
J
Introduction
[1]
The applicant, NEHAWU, acts on behalf of its member, Mr Vuyo Peach.
It seeks leave to appeal against this Court’s judgment
of 13
December 2013.
[2]
In the judgment, an arbitration award of the second respondent was
reviewed and set aside. The underlying dispute was remitted
to the
Bargaining Council (the third respondent) for a fresh arbitration.
There was no costs order. Yet the union seeks leave to
appeal the
judgment, arguing that the award should not have been reviewed,
despite its attorneys’ own submission that the
merits could not
be decided on a limping record.
[3]
The application for leave to appeal was filed late. The applicant
applied for condonation a month after it had belatedly filed
the
notice of application for leave to appeal. I shall deal with that
aspect first. If the application for condonation fails, it
follows
that the application for leave to appeal fails.
Condonation
[4]
I
shall consider the application for condonation in the light of the
well-known principles in
Melane
v Santam Insurance Co Ltd.
[1]
Degree
of lateness
[5]
Judgment was handed down on 13 December 2016. The applicant’s
candidate attorney was in court to note judgment. The
dies
to
note an application for leave to appeal in terms of rule 30(1)
expired on 5 January 2017 (and not, as Mr Marshall, the union’s
national legal coordinator submits in his founding affidavit, on 6
February 2017). It was only delivered on 19 January 2017, and
the
application for condonation a month later, on 19 February 2017. The
application for leave to appeal is thus filed two weeks,
or ten court
days, outside of the 15 day period prescribed by the rules.
Reason
for delay
[6]
The reason for delay is, firstly, the attorneys’ negligence.
Despite their own candidate attorney having been in court
to note
judgment, the attorneys blithely shut down the next day without doing
anything more about it until they re-opened almost
a month later, on
9 January 2017.
[7]
In the interim, despite having been informed of the judgment, the
union didn’t take any further steps either. Mr Marshall
says
that he “was only able to have a telephone discussion with the
member regarding this matter on Monday, 9 January 2017”
without
explaining why.
[8]
Marshall then contacted the union’s attorneys on 10 January
2017 only. Peach only consulted the attorneys three days later,
on 13
January. The union instructed its attorneys to apply for leave to
appeal on the same day; yet they took another six days
to do so. The
only explanation is that Mr Thaanyane was otherwise engaged.
[9]
The
explanation is a poor one. As long ago as 1965 the Appellate Division
held in
Saloojee
:
[2]
“
There
is a limit beyond which a litigant cannot escape the result of his
attorney’s lack of diligence or the insufficiency
of the
explanation tendered. To hold otherwise might have a disastrous
effect upon the observance of the rules of this Court. Considerations
ad misericordiam
should not be allowed to become an invitation
to laxity…”
[10]
And,
in a well-known judgment involving the very same trade union
[3]
,
Lagrange J held:
“
The
deponent mentions that the union has over 230 000 members and 72
branches falling under the various provincial offices of the
union.
The thrust of the explanation is that a large multi-layer
organization cannot easily comply with the time-limits in the
LRA.
However, if one looks at the detail of the explanation the real delay
occurred at head office, and possibly at the initial
stage before it
was referred to the regional office. When the application was
received there was more than enough time to make
the referral
timeously and the explanation of what occurred during this time is
not satisfactory. ...
The
LRA has been in existence for more than 15 years, and the time-limits
governing referrals have not changed in that time. It
is reasonable
to expect that trade unions ought to be well aware of the need to act
timeously in the interests of their members
and to adapt their
internal procedures to accommodate those time-limits, not vice versa.
The scale of an organisation cannot serve
as a justification for
delays. On the contrary, it is reasonable to expect that larger
organizations, be they trade unions or businesses,
ought to be able
to see to it that they are organized to deal with disputes of this
nature in a systematic manner to ensure that
they do not fall foul of
the time-limits in the LRA. Where handling such disputes is a core
function of the organization, this
should go without saying.”
[11]
The same considerations apply in this case. The poor explanation,
coupled with a relatively short delay, should then be considered
against the union’s prospects of success in the application for
leave to appeal.
Prospects
of success
[12]
What must be considered, is whether the union has good prospects of
showing that another court will come to a different conclusion
on the
review application.
[13]
I
think not. The court
a
quo
was
guided by the Constitutional Court’s judgment in
Baloyi
[4]
in deciding to remit the dispute to the Bargaining Council. And Mr
Thaanyane
himself
submitted that the record was defective.
[14]
There are no reasonable prospects that another court will decide
differently in deciding how to deal with the matter, given
the
defective record.
Conclusion
[15]
There are no prospects of success in the application for leave to
appeal. It follows that the application for condonation cannot
succeed.
[16]
The union and its members have a full opportunity to have the dispute
properly decided at a fresh arbitration. Instead, they
have incurred
further costs in bringing an unsuccessful application for condonation
and for leave to appeal. Those costs were unnecessary.
In law and
fairness, the Department should be compensated.
Order
The
application for condonation – and thus the application for
leave to appeal - is dismissed with costs, including the costs
of two
counsel.
_______________________
Anton
Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
Applicant:
N Thaanyane (attorney).
First
Respondent:
P L Mokoena SC (with
him T Molokomme)
Instructed
by
the State Attorney (Bloemfontein).
[1]
1962 (4) SA 531 (A) 532 C-F.
[2]
Saloojee
and another NNO v Minister of Community Development
1965 (2) SA 135
(A) at 141.
[3]
National
Education Health & Allied Workers Union & others v
Vanderbijlpark Society for the Aged
(2011) 32
ILJ
1959 (LC) par [8] – [9].
[4]
Baloyi
v MEC for Health and Social Development, Limpopo
(2016) 37
ILJ
549 (CC).