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[2017] ZALCJHB 451
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NEHAWU obo Dlamini and Others v Commission for Conciliation, Mediation and Arbitration and Others (JR1632/14) [2017] ZALCJHB 451 (28 November 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case
no: JR 1632 / 14
In
the matter between:
NEHAWU obo DLAMINI AND 5
OTHERS
Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
First
Respondent
MASOTE, B T N.O. (AS ARBITRATOR)
Second Respondent
THE SOUTH AFRICAN SOCIAL SECURITY
AGENCY
(SASSA)
Third Respondent
Heard:
Considered in Chambers
Delivered:
28 November 2017
Summary:
Application for leave to appeal – application for leave to
appeal brought out of time –
non
-
compliance
with Practice Manual – no proper case for condonation made out
– application dismissed with costs
Application
for leave to appeal – no proper case for leave to appeal made
out – application dismissed with costs
JUDGMENT
SNYMAN, AJ
Introduction
[1]
The
current applicant for leave to appeal was also the applicant in a
review application brought in this Court, seeking to review
and set
aside an arbitration award made by the second respondent in his
capacity as an arbitrator of the Commission for Conciliation,
Mediation and Arbitration (the first respondent).
[2]
The
review application was argued before me on 16 May 2017, and in an
ex
tempore
judgment handed down the same day, I dismissed the applicant’s
review application with costs. The applicant has subsequently
attended to transcribe the
ex
tempore
judgment, and once it came to hand, filed an application for leave to
appeal on 24 August 2017.
[3]
Considering
that I gave judgment on 16 May 2017, this application for leave to
appeal is out of time. The applicant however
did apply for
condonation.
[4]
Clause
15 of the Practice Manual applies to applications for leave to
appeal. In particular, clause 15.2 provides:
‘
Within
10 days of the filing of the application for leave to appeal, the
party seeking leave must file its submissions in terms
of Rule 30(3A)
and the party opposing the leave must file its submissions five days
thereafter. …’
[5]
Further,
written notice by my associate was given on 29 August 2017 to the
applicant, drawing the applicant’s attention to
clause 15 of
the Practice Manual and calling on the applicant to file written
submissions. These written submissions were only
filed on 23 November
2017.
[6]
Finally,
and in terms of clause 15.2 of the Practice Manual, it is provided
that an application for leave to appeal will be determined
by a Judge
in chambers, unless the Judge directs otherwise. I see no reason why
the application for leave to appeal needs to be
dealt with in open
Court, and I shall therefore determine the applicant’s leave to
appeal application in chambers.
Late
application for leave to appeal and failure to comply with the
Practice Manual
[7]
In
terms of Rule 30(2) of the Labour Court Rules,
an
application for leave to appeal must be made and the grounds for
appeal furnished, within 15 (fifteen) days of the date of the
judgment or order in respect of which leave to appeal is sought.
The Court however can condone the late filing of such application
for
leave to appeal on good cause shown.
[8]
In
this instance, and as said above, judgment was given on 16 May 2017.
The prescribed time period applies as from that date.
[1]
That means that any application for leave to appeal had to be brought
on or before 6 June 2017. The application for leave
to appeal
was only filed on 24 August 2017, and is thus in excess of two and a
half months’ late. This is a substantial
delay which
required a very good explanation when the applicant sought
condonation.
[2]
In
MCC
Contractors (Pty) Ltd v Johnston NO and Others
[3]
the Court held:
‘…
The
Rules of the Labour Court (and those of the High Court) provide for
time periods within which an application for leave
to appeal
must be brought. There are important policy considerations for
requiring a party to file an application for leave to
appeal within a
certain time period. Where a party does not observe the rules, such a
party must apply for condonation and it is
for the applicant to
satisfy the court that there is sufficient cause to excuse him
or her from not complying with the rules.
….
…
.
In
the context of labour litigation, there is however a further
important consideration that should be taken into account which
is
that labour disputes should be resolved speedily. Any delay in
bringing the application for leave to appeal should therefore
be
properly explained
.’
[9]
The
explanation provided by the applicant for this substantial delay is
poor, to say the least. The duty is on the applicant
to ensure
that an
ex
tempore
judgment is immediately and timeously transcribed. There is no
explanation of any kind as to what the applicants did from
16 May
2017, when the
ex
tempore
judgment was handed down, and 17 July 2017, when it was finally
signed by me. This period is accordingly in essence entirely
unexplained.
[10]
It
would seem that only after the applicant received the transcribed
ex
tempore
judgment, it sought assistance from counsel to settle an application
for leave to appeal. This is in itself a dereliction
of duty,
and cannot serve as an acceptable explanation. In
SA
Police Service v Safety and Security Sectoral Bargaining Council and
Others
[4]
this Court warned:
‘…
It
is thus important that parties in the case where an ex tempore
judgment is given, pay proper attention in court to what the judge
is
saying and the reasons being provided for the judgment, as the
application for leave to appeal must still be filed within 15
days if
any party wants to challenge the judgment. If an applicant for leave
to appeal, despite paying proper attention, then realises
when the
written judgment later comes to hand that it omitted grounds on which
it would seek leave to appeal, such applicant is
free to supplement
the application for leave to appeal …
’
[11]
Then,
and accepting the signed transcribed judgment came to hand on 18 July
2017, as contended by the applicant, there is no explanation
as to
why it then took, with the application already being late, until 24
August 2017 to file it. The applicant needed to explain
what it
actually did in this regard in that period in preparing and then
filing the application for leave to appeal, in proper
detail.
To simply explain this entire period in an already late application
as ‘obtaining advices from counsel’
and then needing to
postpone one meeting with counsel because of illness to a time
suitable to ‘all parties’, is completely
unacceptable,
and no explanation at all.
[12]
In
the end, virtually the entire period of delay in this matter is
unexplained. That should be the end of the application for leave
to
appeal, and the associated condonation application, with prospects of
success becoming an irrelevant consideration. It
is trite that
an unexplained delay renders prospects of success to be an irrelevant
consideration.
[5]
It is clear to me that the approach of the applicant was simply that
condonation was there for the mere asking. This
is, of course,
wrong. In
Seatlolo
and others v Entertainment Logistics Service
(
a
division of Gallo Africa Ltd
)
[6]
the Court
held:
‘
It
is trite law that condonation should only be granted where the legal
requirements have been met and is not a default option.
It remains an
indulgence granted by a court exercising its discretion whilst being
cognizant of the criticism emanating from the
Constitutional Court
and the SCA and bearing in mind the primary objective of the
expeditious resolution of disputes articulated
in the Act.
’
[13]
The
situation is compounded by the applicant’s further failure to
comply with the Practice Manual, in that the applicant filed
its
written submissions in support of the application for leave to appeal
(due by 7 September 2017), only on 23 November 2017,
again more than
two and a half months’ late.
The
applicant is obliged to comply with the provisions of the Practice
Manual, which is not just some or other guideline which parties
can
adhere to at their leisure. As said in
National
Education Health and Allied Workers Union on behalf of Leduka v
National Research Foundation
[7]
:
‘
The
Practice Manual is binding on litigating parties and must be complied
with. It is not just a guideline, but an actual prescript.
…
’
[14]
In
Ralo v Transnet Port
Terminals and Others
[8]
the Court similarly held as follows:
‘
The
Practice Manual contains a series of directives, which the Judge
President is entitled to issue. In essence, the manual sets
out what
is expected of practitioners so as to meet the imperatives of respect
for the court as an institution, and the expeditious
resolution of
labour disputes (see clause 1.3). While the manual acknowledges the
need for flexibility in its application (see
clause 1.2), its
provisions are not cast in the form of a guideline, to be adhered to
or ignored by parties at their convenience.
'
[15]
Therefore,
in the case of a failure to comply with the Practice Manual, a
litigating party is similarly obliged to show good cause
as to why
the Court should nonetheless still entertain the matter, which must
also be done by way of a proper condonation
application.
[9]
In
Samuels
v Old Mutual Bank
[10]
the Court
specifically dealt with instances of non compliance with the Practice
Manual, and said:
‘
In
essence, an application for the retrieval of a file from the archives
is a form of an application for condonation for failure
to comply
with the court rules, time frames and directives. Showing good cause
demands that the application be bona fide; that
the applicant provide
a reasonable explanation which covers the entire period of the
default; and show that he/she has reasonable
prospects of success in
the main application, and lastly, that it is in the interest of
justice to grant the order. It has to be
noted that it is not a
requirement that the applicant must deal fully with the merits of the
dispute to establish reasonable prospects
of success. It is
sufficient to set out facts which, if established, would result in
his/her success. In the end, the decision
to grant or refuse
condonation is a discretion to be exercised by the court hearing the
application which must be judiciously exercised.’
[16]
The
applicant’s delay in filing written submissions is substantial,
once again. The applicant needed to apply for condonation
and
show good cause as to why it did not comply with the clear provisions
of the Practice Manual. The applicant has not done
so at all.
This means that there exists no explanation as to why it has taken
the applicant close on three months to
file written submission that
ought to have been filed in 10 days. This complete lack of
explanation should attract the same
consequences I have already
discussed above.
[17]
The
applicant’s application for leave to appeal thus falls to be
dismissed on the above grounds alone, irrespective of any
consideration of prospects of success. However for the sake of
being complete, I will nonetheless consider the merits of
the
application for leave to appeal, on the basis of the grounds advanced
by the applicant in the application for leave to appeal,
and the
belated written submissions.
Leave
to appeal
[18]
In deciding whether to
grant leave to appeal to the Labour Appeal Court, the Labour Court
must determine whether there is a reasonable
prospect that another
Court would come to a different conclusion to that of the Court
a
quo
, or in other words the
appeal would have a reasonable prospect of success.
[11]
As said in
South African
Clothing and Textile Workers Union and Others v Stephead Military
Headwear CC
[12]
:
‘
It
is trite that for an application for leave to appeal to be
successful, it is required of the party seeking such leave to
demonstrate
that there are reasonable prospects that another court,
in this instance, the Labour Appeal Court, would come to a different
conclusion
to that reached in the judgment that is sought to be taken
on appeal. …
’
[19]
In
Seathlolo
and Others v Chemical Energy Paper Printing Wood and Allied Workers
Union and Others
[13]
the Court also considered the above test for leave to appeal and
added:
‘ …
Further,
this is not a test to be applied lightly — the Labour Appeal
Court has recently had occasion to observe that this
court ought to
be cautious when leave to appeal is granted, as should the Labour
Appeal Court when petitions are granted. The statutory
imperative of
the expeditious resolution of labour disputes necessarily requires
that appeals be limited to those matters in which
there is a
reasonable prospect that the factual matrix could receive a different
treatment or where there is some legitimate dispute
on the law …
’
[20]
And
in
Member
of the Executive Council for Health, Eastern Cape v Mkhitha and
Another
[14]
the Court described ‘reasonable prospects of success’ as
follows:
‘
Once
again it is necessary to say that leave to appeal, especially to this
Court, must not be granted unless there truly is a reasonable
prospect of success. Section
17(1)(a)
of the Superior Cou
rts
Act 10 of 2013 makes it clear that leave to appeal may only be given
where the judge concerned is of the opinion that the appeal
would
have
a reasonable prospect of success; or there is some other compelling
reason why it should be heard.
An
applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic chance
of
success on appeal. A mere possibility of success, an arguable case or
one that is not hopeless, is not enough. There must be
a sound,
rational basis to conclude that there is a reasonable prospect of
success on appeal.
’
[21]
The
grounds of appeal set out in the application for leave to appeal are
general in nature. For example, it is said that I
erred by not
finding that the arbitrator committed an error or that the outcome
was unreasonable. No proper basis is provided for
this contention.
The same difficulty applies to a contention that I failed to
appreciate that the applicants were not prejudiced.
Without the
necessary specificity, no proper determination can be made as to
whether there in fact exists a realistic chance of
success on
appeal. No case for leave to appeal is accordingly made out
where it comes to these general grounds permeating
the application
for leave to appeal.
[22]
The
applicant persists with the contention that a breach of a
disciplinary code is the same as unfair conduct. As I have
dealt with in detail in my judgment, a breach of the code does not
automatically equate to unfairness. More is required.
The
applicant has advanced no argument that could serve to convince me
that it would have a reasonable prospect of success on appeal
in this
respect. I find it unlikely that another Court could come to a
different conclusion where it comes to this principle.
[23]
As to
all the other issues raised in the application for leave to appeal,
the applicant simply repeats the same argument presented
to me when
the matter was originally argued. The fact that the applicant
clearly thinks I am wrong, does not mean that there
is a prospect of
success on appeal. I have properly dealt with all of these
issues in my original judgment. With nothing
new being said
about this, I remain unconvinced that the applicant has a prospect of
success on appeal, and that there exists any
reasonable prospect that
another Court could come to a different conclusion.
[24]
All
said, the applicant has simply made out no proper case for leave to
appeal, and considering that this matter dates back to 2014,
the
following
dictum
from the judgment in
Martin
& East (Pty) Ltd v National Union of Mineworkers and Others
[15]
is apposite:
‘…
I
indicated that the events in this case took place in 2010. The Labour
Relations Act was designed to ensure an expeditious resolution
of
industrial disputes. This means that courts, particularly courts in
the position of the court a quo, need to be cautious when
leave to
appeal is granted.'
[25]
I thus conclude that the
applicant, overall,
has
shown no reasonable prospect that another Court could come to a
different conclusion, has no realistic prospects of success
on
appeal, and accordingly the leave to appeal application must fail.
[26]
As to
costs, it is my view that the applicant’s application for leave
to appeal always had little prospect of success.
The applicant
has now failed twice to upset what was clearly a case without merit.
I intend to follow the same approach I
have adopted in my original
judgment, and make a costs award against the applicant.
Order
[27]
In
the premises, I make the following order:
1.
The applicant’s application for leave to appeal is dismissed
with costs.
____________________
S Snyman
Acting
Judge of the Labour Court
Appearances:
For the
Applicant:
Mdhluli Pearce and Mdzikwa Inc Attorneys
For the Third Respondent:
Renqe Kunene Inc Attorneys
[1]
See
SA
Police Service v Safety & Security Sectoral Bargaining Council
and Others
(2015)
36 ILJ 3143 (LC) at para 7;
Food
& Allied Workers Union v Foodtown Incorporated (Pty) Ltd
(2000) 21
ILJ
1782 (LC)
at
para 4.
[2]
Compare
Msunduzi
Municipality v Hoskins
(2017)
38 ILJ 582 (LAC) at paras 3 and 5.
[3]
(2012) 33 ILJ 2096
(LC) at paras 4 – 5.
[4]
(2015) 36 ILJ 3143
(LC) at para 8.
[5]
See
Mziya
v Putco Ltd
(1999)
3 BLLR 103
(LAC) at para 9;
Moila
v Shai NO and Others
(2007) 28 ILJ 1028 (LAC) at para 34;
Universal
Product Network (Pty) Ltd v Mabaso and Others
(2006) 27 ILJ 991 (LAC) at para 20;
Colett
v Commission for Conciliation, Mediation and Arbitration and Others
(2014)
35
ILJ
1948 (LAC)
at
para 38
;
Mgobhozi
v Naidoo NO and Others
(2006)
27
ILJ
786
(LAC)
at
para 34
[6]
(2011) 32 ILJ 2206
(LC)
at
para 27. See also
3G
Mobile (Pty) Limited v Raphela NO and Others
[2014]
JOL 32479
(LC) at para 33.
[7]
(2017) 38 ILJ 430
(LC) at para 13. See also See
Tadyn
Trading CC t/a Tadyn Consulting Services v Steiner and Others
(2014)
35
ILJ
1672 (LC)
at
para 11;
Butana
v SA Local Government Bargaining Council and Others
[2016] JOL 36088
(LC) at paras 8-9;
Edcon
(Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and
Others: In re Thulare and Others v Edcon (Pty) Ltd
(2016)
37
ILJ
434 (LC)
at
para 24;
3G
Mobile (Pty) Ltd v Raphela NO and Others
[2014]
JOL 32479
(LC) at para 36.
[8]
(2015) 36
ILJ
2653 (LC)
at
para 9.
[9]
See
MJRM
Transport Services CC v Commission for Conciliation, Mediation and
Arbitration and
Others
(2017)
38 ILJ 414 (LC) at paras 12 – 14;
SA
Municipal Workers Union on behalf of Mlalandle v SA Local Government
Bargaining Council and Others
(2017)
38 ILJ 477 (LC) at paras 5 – 6.
[10]
(2017) 38 ILJ 1790
(LAC) at para 17.
[11]
See
Section
17(1)(a)
of the
Superior Courts Act 10 of 2013
;
Molefe
v MMARAWU and Others
[2017] ZALCJHB 337 (13 September 2017);
Mbawuli
v Commission for Conciliation, Meditation and Arbitration and Others
[2017] ZALCJHB 275 (1 August 2017);
Glencore
Operations South Africa (Pty) Ltd v NUM obo Maripane and Others
[2017] ZALCJHB 147 (11 May 2017).
[12]
[2017] JOL 37932B
(LC) at para 7.
[13]
(2016) 37 ILJ 1485
(LC)
at
para 3.
[14]
[2016] JOL 36940
(SCA) at paras 16 – 17. Also compare Smith v S
[2011]
JOL 26908
(SCA) at para 7; Greenwood v S
[2015] JOL 33082
(SCA) at
para 4; Kruger v S
[2014] JOL 31809
(SCA) at para 2.
[15]
(2014) 35
ILJ
2399 (LAC)
at
2405J-2406A