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[2017] ZALCJHB 156
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Industrial Development Corporation of South Africa Limited (IDC) v Roscher and Others (JR2946/10) [2017] ZALCJHB 156 (12 May 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR2946/10
INDUSTRIAL
DEVELOPMENT
CORPORATION
OF SOUTH AFRICA
LIMITED
(IDC)
Applicant
and
TRACEY
LUCILLE ROSCHER
First Respondent
ERIC MYHILL
N.O.
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
Second Respondent
Third Respondent
Decided:
In chambers
Judgment:
12 May 2017
Summary:
Leave
to appeal –– application for leave to appeal granted.
RULING ON LEAVE TO
APPEAL
HOWES,
AJ
Introduction
[1]
This is an
application for leave to appeal in respect of the whole of the
judgment and order handed down by the Honourable Court
on 2 August
2016. In terms of the judgment, the Applicant’s review
application was successful, and the arbitration award
issued by the
Third Respondent was set aside and replaced with an award that the
dismissal of the First Respondent was substantively
fair.
[2]
The First
Respondent seeks leave to appeal the judgment, and also seeks
condonation for the late filing of her written submissions.
The
Applicant opposes the application for leave to appeal and the
application for condonation.
[3]
While the
delay in serving and filing the written submissions is significant
(some 60 days), an explanation of sorts is provided
for the delay. It
appears that a material portion of the delay is submitted to have
been occasioned as a result of the untimely
death of Mr Anthony
Hinds, the First Respondent’s initial attorney of record.
Thereafter the delay is further explained as
a result of the First
Respondent’s attempts to secure her file from the offices of Mr
Hinds, due to
inter
alia
a
fee dispute.
[4]
I have to
agree with the Applicant that there are certainly aspects of the
First Respondent’s explanation that are lacking,
but as the
primary explanation relates to action or inaction of the late Mr
Hinds and Mr Hinds’ offices, it is unlikely that
the First
Respondent could have provided a more detailed explanation for that
period. While there are periods of the delay which
are not properly
explained, in the exercise of my discretion and given my views
relating to the complexities of this matter and
the merits of the
application for leave to appeal, I condone the delay.
[5]
Having
carefully considered the application for leave to appeal, and the
submissions filed by both parties, I am persuaded that
there are
reasonable prospects that another court may reach a different
conclusion on appeal. Furthermore, this matter is of considerable
factual and legal complexity, it is voluminious in nature and it is
of some public importance, as it involves a publicly-funded
employer,
faced with a retrospective reinstatement order in respect of a senior
and highly paid employee. In my view, it would
be in the interests of
justice to grant leave to appeal.
Order:
1.
Condonation
for the late filing of the First Respondent’s written
submissions, is granted.
2.
The
application for leave to appeal is granted.
3.
Costs of
this application are to be costs in the appeal.
__________________
Howes,
AJ
Acting
Judge of the Labour Court of South Africa