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[2018] ZALCJHB 47
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South African Post Office SOC Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR254/16) [2018] ZALCJHB 47 (8 February 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR254/16
In the matter between:
SOUTH
AFRICAN POST OFFICE SOC
LTD
Applicant
and
THE
COMMISSION FOR CONCILIATION, MEDIATION
AND
ARBITRATION
First
Respondent
NOMUSA
MBHELE N.O
Second
Respondent
COMMUNICATION
WORKERS UNION obo
THOMAS
MOKOENA AND 34 OTHERS
Third
Respondent
Decided:
In Chambers
Delivered:
8 February 2018
JUDGMENT-APPLICATION FOR LEAVE TO
APPEAL
PRINSLOO. J
Introduction
[1]
The Applicant filed a review application
outside the prescribed 6-week period within which an application for
review has to be filed.
The Applicant was well aware of this fact,
but failed to apply for condonation. Instead the Applicant explained
that condonation
would be sought in the supplementary affidavit which
would only be filed once a full record of the arbitration proceedings
was
obtained and the Applicant sought condonation for its failure to
apply for condonation. In the absence of an application for
condonation
this Court has no jurisdiction to adjudicate the review
application.
[2]
On 3 November 2017 I handed down an
ex-tempore
judgment
inter alia
dismissing
the Applicant’s review application for lack of jurisdiction.
[3]
The Applicant filed an application for
leave to appeal against the whole of the judgment and order of this
Court, except paragraph
1.4 of the order.
[4]
The application for leave to appeal is
opposed.
[5]
I have considered the grounds for appeal as
well as the submissions made in in opposition thereof and I do not
intend to repeat
those
verbatim
herein.
The
test for leave to appeal
[6]
It is trite that an applicant in an
application for leave to appeal must convince the court
a
quo
that it has reasonable prospects of
success on appeal. What the test requires is the reasonable
likelihood that another court,
presented with the same facts and
evidence as this Court, could come to a different conclusion than the
one arrived at by this
Court.
[7]
Appeals should be limited to matters where
there is a reasonable prospect that the factual matrix could receive
a different treatment
or where there is some legitimate dispute on
the law.
Grounds
for leave to appeal
[8]
I have read and considered the Applicant’s
grounds for leave to appeal and
having
considered those and applying the aforesaid principles applicable to
applications for leave to appeal, I am not persuaded
that there are
reasonable prospects that the Labour Appeal Court (LAC)would arrive
at a different conclusion than the one arrived
at by this Court.
[9]
The grounds for appeal are all without
merit and I do not intend to repeat or address all the grounds for
appeal raised by the Applicant.
I will do so to a limited extent
merely to illustrate that the application for leave to appeal is
without merit and that scare
judicial resources should not be spent
on a meritless appeal such as this one.
[10]
I have to emphasize that the Applicant has
been and still is represented by attorneys, wherefore the grounds for
leave to appeal
are not the thought or the understanding of the law
as from the perspective of a layperson or an unrepresented individual
with
no legal qualification.
[11]
The Applicant submitted that I erred in not
considering that SAPO has acknowledged the need for it to launch an
application for
condonation for the late filing of its review
application and that such an application would be launched once the
full record has
been filed, alternatively that it would be filed with
the supplementary affidavit. What I ought to have found was that it
remained
open to the Applicant to file its condonation application at
any stage before judgment on the review application.
[12]
These
submissions show a lack of understanding of the legal position. In my
judgment, I referred to
SA
Transport and Allied Workers Union v Tokiso Dispute Settlement and
others
[1]
where the
LAC confirmed that where a party is out of time and has to take the
jurisdictional step to apply for condonation but failed
to do so, a
court cannot come to the party’s assistance. The LAC held that
in the absence of an application for condonation,
a court cannot
assist the party.
[13]
There is no authority for the Applicant’s
submission that it remained open
to the
Applicant to file its condonation application at any stage before
judgment on the review application is handed down. Such
a submission
in fact flies in the face of the LAC's authorities.
[14]
In
Computer
Storage Services Africa (Pty) Ltd v CCMA and Others
[2]
the
LAC recently confirmed that
where
no application served before the Labour Court seeking condonation to
be granted for the late filing of the application for
review, the
Labour Court correctly found that it lacked jurisdiction to determine
that review application.
[15]
The Applicant also seeks leave to appeal on
the ground that I erred in dismissing the review application on the
basis that it called
for consideration before the merits of the two
Rule 11 applications could be considered. The Applicant’s
case is that
I ought to have found that whether to grant condonation
for the late filing of the review application is a matter for the
Court
hearing the review application.
[16]
The Applicant’s understanding of the
judgment is flawed. The Applicant understands that the review
application was dismissed
on the basis that it called for
consideration before the merits of the two Rule 11 applications could
be considered. This was not
the basis for dismissing it.
[17]
In its Rule 11 application the Third
Respondent raised the issue that the review application was filed out
of time and that no condonation
application was filed. The late
filing of the review application without an application for
condonation was an issue that called
for consideration before the
merits of the two Rule 11 applications could be considered and once
it was determined that the review
application was indeed filed late
without an application for condonation, this Court had no
jurisdiction.
[18]
In view of the attitude adopted in respect
of the issue of condonation and more specifically the fact that Third
Respondent raised
the issue of condonation in its Rule 11
application, that the Applicant conceded that the application for
review was filed out
of time and that there was no attempt to apply
for condonation and to rescue the Applicant’s case by bringing
it within the
jurisdiction of this Court, I ordered that the
Applicant’s attorneys file an affidavit to explain why the tax
payer should
be burdened with a cost order and not the attorneys
de
bonis propriis.
The attorneys were
afforded until 30 November 2017 to file an affidavit to explain why
they should not be liable for the costs
.
[19]
The Applicant’s attorneys have not
filed such an affidavit, instead the Applicant submitted that I erred
in making such an
order and that I ought to have found that the
attorneys acted reasonably and that the Applicant should bear the
costs.
[20]
The purpose of the affidavit is exactly to
explain their conduct and to set out reasons why they should not be
liable for the costs,
which affidavit the attorneys elected not to
file, despite an invitation and order from this Court to do so.
[21]
In casu
I
am not persuaded that a case is made out for leave to appeal to be
granted and the LAC should not be burdened with an appeal that
lacks
merit.
[13] In the result I make the
following order:
Order
1.
The application for leave to appeal is
dismissed;
2.
There is no order as to costs.
_____________________
Connie Prinsloo
Judge of the Labour Court
[1]
(2015) 36
ILJ 1841 (LAC).
[2]
Unreported
judgment of the Labour Appeal Court (CA 7 /2016) handed down on 30
November 2017.