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[2017] ZALCJHB 372
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NEHAWU obo Netshivubgululu v General Public Service Sectoral Bargaining Council and Others (JR1020/15) [2017] ZALCJHB 372 (10 October 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR1020/15
In
the matter between:
NEHAWU
OBO ISAAC NDINANNYI NETSHIVUNGULULU
Applicant
and
GENERAL
PUBLIC SERVICE SECTORAL BARGAINING
COUNCIL
First Respondent
RALEFATANE
MJ
N.O
Second Respondent
STATISTICS
SOUTH
AFRICA
Third Respondent
Decided:
In Chambers
Delivered:
10 October 2017
JUDGMENT:
LEAVE TO APPEAL
SCHENSEMA,
AJ
Introduction
[1]
This is an application for leave to appeal against the judgment of
this Court made on 26 August 2016, in terms of which the
applicant's
review application was dismissed with costs.
[2]
Accompanying the application for leave to appeal is an application
for condonation for its late filing. In terms of Rule 30
(2) of the
Rules of this Court, if leave to appeal has not been made at the time
of judgment or order, an application for leave
must be made and the
grounds for appeal furnished within 15 days of the date of the
judgment or order against which leave to appeal
is sought, except
that the Court may, on good cause shown, extend that period. The
application for leave to appeal in this case
was filed on 25 April
2017.
Condonation
application
[3]
The principles applicable to applications for condonation are well
established
[1]
.
Thus whether the applicant has shown good cause involves a
consideration of a variety of factors including the degree of
lateness,
the explanation therefore, the prospects of success and the
importance of the case. These factors are interrelated and are not on
their own individually decisive. However, where there are no
prospects of success, there would be no point in granting
condonation.
Furthermore, a slight delay and a good explanation may
nevertheless help to compensate prospects which are not strong,
whilst the
importance of the issue and strong prospects may
compensate for a long delay. Ultimately, the interests of justice
would determine
whether the application for condonation should be
granted
[2]
.
[4]
In explaining the delay, the applicant in his founding affidavit
averred that he only became aware of the judgment when he received
the bill of costs from the third respondent's attorneys of record on
14 March 2017. The applicant has further averred that the
reason why
he could not receive any communication from the Court is that he had
been placed on suspension in September 2016 and
his laptop and cell
phone had been confiscated as a result thereof. The applicant had no
access to email or fax and was therefore
not able to receive any
correspondence from the Court.
[5]
The applicant has further averred that due to the fact that his shop
steward had tried on several occasions to communicate with
the legal
department of NEHAWU that further delays were caused. The applicant
is of the view that his application for leave to
appeal was due to be
delivered on or before 30 April 2017 and his application for leave to
appeal was therefore only 18 days late.
[6]
On considering the applicant's condonation application, I noted that
there was no proof attached to the applicant's application,
that the
application had been served on the third respondent. I therefore
requested that Ms Maluleke (the Judge’s Secretary)
make contact
with the third respondent's attorneys of record to ascertain whether
they had in fact received the applicant's condonation
application. I
was advised by Ms Maluleke that the application had not been received
by the third respondent's attorneys and that
the third respondent
would be filing its answering affidavit. The answering affidavit was
filed at Court on 13 September 2017.
[7]
In opposition to the applicant's condonation application it has been
averred that the application for leave to appeal ought
to have been
delivered on 16 September 2016 which is 15 court days after the
judgment was delivered
[3]
.
The application for leave was only delivered on 25 April 2017 and was
therefore approximately 151 days late. The third respondent
further
avers that as
dominus litis
in the review application,
the applicant ought to have actively pursued his claim and would have
expected the applicant to have
followed up regularly with the Court
as to the outcome of his matter.
[8]
It is trite that an applicant for condonation, is required to furnish
a reasonable and acceptable explanation for the delay
and that an
applicant seeking condonation for the non-compliance with the set
time frames must give a complete account for each
period of delay.
[4]
[9]
In this case, it is my view that the applicant's explanation is
lacking in detail and does not give a complete account of what
caused
the delay from 14 March 2017 to 25 April 2017. Furthermore the
applicant's explanation that as a result of his suspension
he was not
able to receive any communication from the Court is also not
reasonable. Even if I were to accept this explanation,
the applicant
does not explain the delay between14 March to 25 April 2017.
[10]
Other than the applicant's failure to proffer a reasonable and/or
acceptable explanation for the delay, the issue is whether
he has
prospects of success in respect of his application for leave to
appeal. It is trite that even if the delay is not excessive
no
purpose would be served in granting condonation where the applicant’s
prospects of success are minimal.
Leave
to appeal application
[11]
In considering the applicant's prospects of success, I have had
regard to the grounds upon which leave to appeal is sought,
which
grounds I do not intend to deal with separately.
[12]
In considering whether to grant or refuse leave to appeal, I apply
the well-known test of leave to appeal which is; whether
there is a
reasonable prospect that another Court may come to a different
conclusion to that reached by this Court.
[5]
The assessment whether another Court may come to a different
conclusion has to be done with reference to whether the applicant
has
made out a case that there are prospects of succeeding on appeal. The
other consideration has to do with whether the matter
is of
substantial importance to the parties.
[13]
As set out in my judgment, the applicant was required to reconstruct
the record, which the applicant despite the correspondence
received
from the third respondent's attorneys of record at the time, refused
to do. The applicant's entire basis of his review
is reliant upon the
evidence that was submitted during the arbitration proceedings and
accordingly by the very nature of the applicant's
review application,
it was essential that the applicant provide the documentary record of
the proceedings he wished to review.
The applicant further failed to
provide any explanation as to why he did not deem it necessary to
reconstruct the record.
[14]
In light of the above, and further having considered all material
pertinent to the application before the Court, it is concluded
that
the applicant has not proffered a reasonable and acceptable
explanation for the delay. Having considered the grounds upon
which
he seeks leave to appeal, I am not persuaded that there are
reasonable prospects of success in the appeal.
[15]
I therefore make the following order:
Order
1.
The late filing of the application for leave to appeal is not
condoned.
2.
The application for leave to appeal is also dismissed.
3.
The applicant is ordered to pay the third respondent's costs.
______________
Hedda
Schensema
Acting
Judge of the Labour Court
[1]
See
Melane
v Santam Insurance Co. Ltd
1962
(4) SA 531
(A) at 532B-E
2
Brummer v Gorfil Brothers Investments (Pty) Ltd
[2000] ZACC 3
;
[2000] (2) SA
837
(CC) at 839 F
[3]
See
Rule 30(2) of the Labour Court Rules.
[4]
See
NUMSA
and another v Hillside Aluminium
[2005]
6 BLLR 601 (LC)
[5]
See
Westing
House Break and Equipment (Pty)Ltd v Bilger Engineering (Pty) Ltd
1986
(2) SA 555
(A)
where the Court reiterated the general principle that in order for
an applicant for leave to appeal to succeed, the applicant
must
demonstrate that it has a reasonable prospect of success on appeal.