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[2018] ZALCJHB 100
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Maile v Department of Correctional Services (JS33/13) [2018] ZALCJHB 100 (6 March 2018)
Not
Reportable
Case
NO: JS 33/13
In the matter between:
KATISHI
JOB
MAILE
Applicant
and
DEPARTMENT
OF CORRECTIONAL SERVICES
Respondent
Decided:
In Chambers
Delivered:
6 March 2018
JUDGMENT:
LEAVE TO APPEAL
TLHOTLHALEMAJE,
J
[1]
The applicant brought a claim in terms of
the provisions of section 77(3) of the Basic Conditions of Employment
Act, to seek payment
of his outstanding salary for the period
July 2004 to 17 January 2013. The non-payment of the
salary was attributed
to the fact that he was criminally charged,
convicted and incarcerated.
[2]
Flowing from the criminal process, the
respondent decided to prefer charges of misconduct against the
applicant. An internal disciplinary
hearing was scheduled and
convened in the applicant’s absence. He was subsequently found
guilty on two charges levelled against
him and had his services
terminated.
[3]
Aggrieved by the dismissal, the applicant
launched an appeal with the respondent’s appeals forum. The
issue before this Court
was whether the applicant remained an
employee whilst incarcerated, and whether he was entitled to receive
his remuneration notwithstanding
his conviction and dismissal pending
the finalisation of his appeal.
[4]
Following upon trial proceedings on 22 March 2017,
this Court handed down judgment on 24 March 2017 in terms
of which the applicant’s claim was dismissed without an order
of costs. He has since filed an application for leave to appeal
to
the Labour Appeal Court against the whole of the judgment and the
order.
[5]
The
applicant filed the notice of application for leave to appeal on
19 May 2017. Rule 30 of the Rules of this Court
[1]
require a Notice of application for leave to appeal to be filed and
served within 15 days from the date of the judgment and/ or
order.
The applicant in this case ought to have filed and served his notice
of application on or before 13 April 2017.
He only did so
some 22 days outside the timeframes stipulated in the Rules.
[6]
At paragraph 4 of the Notice, the applicant had
indicated his intention to bring an application for condonation for
the late filing
of this application. This however was not to be so.
In the absence of an application for condonation or good cause shown
as contemplated
in Rule 30 (2), ordinarily, the application for leave
to appeal ought to be dismissed.
[7]
Furthermore, in terms of clause 15 of the
Court’s Practice Manual, it is incumbent upon the applicant in
an application for
leave to appeal to file his written submissions
within 10 days from the date of the filing of the notice of
application. Again,
the applicant in this case was found wanting, as
he had only done so on 14 December 2017, approximately
seven months
late. Again, there is no explanation proffered by the
applicant for the lateness.
[8]
The respondent in its written submissions
in opposition to the application for leave to appeal does not take
issue with late lodging
of the application for leave to appeal. That
may be because it too filed its written submission on
19 January 2018, approximately
18 days outside the time
periods stipulated in clause 15.2 of the Practice Manual. This
omission is however of no moment, as the
court still need to satisfy
itself that the application is properly before it. Taking into
account the non-compliance with the
timeframes provided for in the
Rules and the Practice Manual, the applicant’s application
ought to be dismissed on that basis
alone.
[9]
For
the sake of completeness however, and in the light of the merits of
the application, it is further my view that the application
still
ought to be dismissed. It is trite that the test in determining
whether leave to appeal should be granted is whether there
is a
reasonable prospect that another court (in this case, the Labour
Appeal Court), may come to a different conclusion to that
reached by
the Court whose judgment is sought to be taken on appeal.
In
considering this test, the Supreme Court of Appeal in
S
v Smith
[2]
held that:
‘
What
the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law that a court
of appeal could reasonable arrive at a conclusion different to that
of the trial court. In order to succeed, therefore, the appellant
must convince this court on proper grounds that he has prospects of
succeed on appeal and that those prospects are not remote but
have
realistic chance of succeeding. More is required to be established
than that there is a mere possibility of success, that
the case is
arguable on appeal or that the case cannot be categorised as
hopeless. There must, in other words, be a sound, rational
basis for
the conclusion that there are prospects of success an appeal’
[10]
I have had regard to the submissions made by the applicant and those
made in opposition to the application. Having reflected
on my
judgment and the basis upon which leave to appeal is sought, I am of
the view that there is no sound, rational basis for
a conclusion to
be reached that are reasonable prospects that the applicant would be
successful on appeal. All the submissions
and complaints raised are
matters that were adequately addressed in my judgment and no purposes
would be served in revisiting them
in this judgment. In the
circumstances, the application ought to be dismissed.
[11]
In respect of costs, and taking into account a variety of factors,
including the non-compliance with the Court’s Rules
and
Practice Manual by both parties, I am of the view that the
requirements of law and fairness dictate that no order as to costs
should be made.
Order:
[12]
Accordingly, the following order is made;
1. The
application for leave to appeal is dismissed.
2.
There is no order as to costs
___________________
E.
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
[1]
30 Application for leave to
appeal to the Labour Appeal Court
1)
An application for leave to appeal to the Labour Appeal Court may be
made, by way of a statement of the grounds
for leave, at the time of
the judgment or order.
2)
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.
[2]
2010 (1) SACR at 576 (SCA)