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[2018] ZALCJHB 440
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Mcdonald v TRSS 24 Hour Reaction (Pty) Ltd and Another (J 1569/18) [2018] ZALCJHB 440 (22 February 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: J 1569/18
In
the matter between:
GEORGE
MCDONALD
Applicant
and
TRSS
24 HOUR REACTION (PTY) LTD
First
Respondent
MATHEW
MCDONALD
Second Respondent
Decided:
In Chambers
Delivered:
22 February 2018
JUDGMENT-APPLICATION
FOR LEAVE TO APPEAL
PRINSLOO, J.
Introduction
[1]
On 10 April 2018, the Applicant, as an
intervening party, filed an application seeking
inter
alia,
that he be granted leave to join
the proceedings under case numbers J 1569/17 and J 305/18 as a party.
The Respondents were afforded
10 days from date of service of the
application to file an answering affidavit.
[2]
The opposing affidavit had to be filed by
24 April 2018. The First Respondent (the Respondent) notified the
Applicant on 26 April
2018 of its intention to oppose the application
and on 4 May 2018 the Respondent filed an opposing affidavit. The
opposing papers
were filed outside the 10-day period and are six
Court days late.
[3]
On 9 May 2018, the Applicant filed a
replying affidavit and in the said affidavit issue was taken with the
fact that the opposing
affidavit was filed out of time and it was
stated that the Applicant ‘accordingly refuses to accept the
First Respondent’s
answering affidavit.’
[4]
On
24 May 2018, the Applicant filed an application in terms of the
provisions of Rule 11 of the Labour Court Rules, seeking an order
that the Respondent’s opposing affidavit be set aside and / or
strike out the answering affidavit in terms of clause 11.4.2
of the
Practice Manual for the Labour Court
[1]
.
[5]
The Applicant’s case was that clause
11.4.2 of the Practice Manual provides that where an opposing
affidavit was filed outside
the time period set out in the Rules,
without filing a condonation application, the Applicant may bring an
application to have
such an answering affidavit set aside or be
struck out. As the Respondent did not file a condonation application
wherein it seeks
condonation for the late filing of the answering
affidavit, the answering affidavit had to be set aside.
[6]
On 3 August 2018, the Respondent filed an
application for condonation for the late filing of its answering
affidavit, wherein it
was explained that the answering affidavit was
filed six days outside the time limits prescribed in the Rules. The
Respondent explained
that it had been compelled to defend a number of
applications settled by the Applicant on behalf of his son, the
Second Respondent.
When the answering affidavit was filed out of time
and the Applicant objected thereto, the Respondent decided that the
legal costs
associated with the said application would be
unnecessarily inflated by filing a comprehensive application for
condonation. It
was the Respondent’s intention to oppose the
joinder application merely on the basis of legal submissions and it
would not
place reliance on the answering affidavit when opposing the
joinder application.
[7]
However, matters were complicated with the
Applicant’s application to strike out and a condonation
application was filed.
[8]
The Respondent made it clear that the
condonation application was filed to enable the Applicant to enrol
the joinder application
as it seems that he is of the view that he is
not entitled to enrol the joinder application without the Respondent
having either
served and filed an application for condonation or the
opposing affidavit being struck out.
[9]
The Applicant opposed the condonation
application.
[10]
On 16 October 2018, the matter came before
me and I granted the following order:
‘
1.
The First Respondent is granted condonation for the late filing of
its answering affidavit in the Applicant’s
joinder application;
2.
The Applicant’s application to strike out the First
Respondent’s answering affidavit is dismissed;
3.
There is no order as to costs’.
[11]
I have considered the papers before me. A
delay of six days in filing an opposing affidavit is minimal, more so
where the Applicant
was unable to show that he had suffered any
prejudice because the opposing affidavit was filed six days out of
time. I have further
considered the fact that the Respondent has good
prospects of success in opposing the joinder application and
considering the minimal
degree of lateness, the explanation, the
prospects of success and the absence of prejudice, I exercised my
discretion and I granted
condonation for the late filing of the
Respondent’s opposing affidavit.
[12]
Having granted condonation for the late
filing of the opposing affidavit, it followed that the application to
strike out or set
aside the opposing affidavit, had to fail.
[13]
In his affidavit opposing condonation, the
Applicant referred to this Court’s duty to expedite matters. I
am very alive to
the need to expedite matters and to ensure that they
are dealt with as speedily and expeditiously as possible. In granting
condonation,
the intention was that the joinder application would be
enrolled for hearing so that the parties could move forward in this
litigation.
[14]
I have alluded to the fact that this Court
has limited resources and many litigants who que for a Court date and
to bring this application
and cause the Respondent to file an
application for condonation for a six-day delay and to take up a day
in Court for this, was
unnecessary and is contributing to an
avoidable delay in this application.
[15]
On 30 October 2018, the Applicant filed an
application for leave to appeal wherein he raised numerous grounds
for appeal. On 28
January 2019, the Applicant filed supplementary
submissions wherein he raised grounds for leave to appeal that were
not included
in the original application for leave to appeal. The
Applicant was entitled to make submissions in regard to the original
leave
to appeal that he had filed on 30 October 2018, within the
period allowed to file an application for leave to appeal. The
Applicant
is not entitled to raise new and different grounds for
appeal, far outside the prescribed period, without an application for
condonation
for the late submission of new grounds for leave to
appeal. The Applicant strikes me as a person who follows the Rules to
the tee
and who expects others to do so as well. He should be aware
of the fact that there is a prescribed period within which an
application
for leave to appeal is to be filed and that new grounds
cannot be filed almost three months later, without any application
for
condonation.
[16]
The application for leave to appeal is
opposed on the basis that the order that was granted is of an
interlocutory nature and therefore
not appealable.
The
test for leave to appeal
[17]
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.
[18]
The
test for leave to appeal has become more stringent and this Court
solidified this test
Seatlholo
and Others v Chemical Energy Paper Printing Wood and Allied Workers
Union and Others
[2]
where
it held:
‘
The
traditional formulation of the test that is applicable in an
application such as the present requires the court to determine
whether there is a reasonable prospect that another court may come to
a different conclusion to that reached in the judgment that
is sought
to be taken on appeal. As the respondents observe, the use of the
word “would” in s17(1)(a)(i) are indicative
of a raising
of the threshold since previously, all that was required for the
applicant to demonstrate was that there was a reasonable
prospect
that another court
might
come to a different conclusion (see
Daantjie
Community and others v Crocodile Valley Citrus Company (Pty) Ltd and
another
(75/2008)
[2015] ZALCC 7
(28
July 2015). 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.”
[19]
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.
[20]
In
deciding this application for leave to appeal I am also guided by the
dicta
of
the Supreme Court of Appeal where it held in
Dexgroup
(Pty) Ltd v Trustco Group
[3]
that
:
‘
The
need to obtain leave to appeal is a valuable tool in ensuring that
scarce judicial resources are not spent on appeals that lack
merit.
It should in this case have been deployed by refusing leave to
appeal.’
Grounds
for leave to appeal
[21]
I have considered the grounds for leave to
appeal as well as the submissions made in opposition thereof and I do
not intend to repeat
those
verbatim
herein.
[22]
I have 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 would arrive at a
different conclusion than the one arrived at
by this Court.
[23]
I am not persuaded that the Applicant has
made out a case for leave to appeal to be granted.
This
application is without merit and scarce judicial resources should not
be spent on it
and the Labour Appeal Court
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]
April
2013.
[2]
(2016)
37 ILJ 1485 (LC) at para 3.
[3]
Unreported
judgment of the Supreme Court of Appeal (687/12)
[2013] ZASCA 120
(20 September 2013)