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[2018] ZALCJHB 191
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Association of Mineworkers and Construction Union and Others v Commission for Conciliation, Mediation and Arbitration and Others (JR730/16) [2018] ZALCJHB 191 (18 May 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no:
JR
730/16
In the matter between:
THE ASSOCIATION OF
MINEWORKERS
AND
CONSTRUCTION UNION
First Applicant
THE MEMBERS OF AMCU
REFLECTED ON
ANNEXURE
‘A’
Second to Further Applicants
and
THE COMMISSION FOR
CONCILIATION
MEDIATION
AND ARBITRATION
First
Respondent
COMMISSIONER
KGOMOTSO LEKWAKWE
N.O
Second Respondent
GLOBAL
CLEANING SERVICES (PTY) LTD
Third Respondent
EKM
TRADING (PTY)
LTD
Fourth Respondent
TMMS TRADING CC
Fifth
Respondent
ELUTSANE
ENTERPRISE (PTY)
LTD
Sixth Respondent
MAHUBE
A GAUTA 78 HOLDINGS (PTY) LTD
Seventh Respondent
KWEZI INVESTMENTS
(PTY) LTD
Eighth Respondent
SIZISA UKHANYO
TRADINGS 498 CC
Ninth Respondent
Heard:
In chambers
Delivered:
18 May 2018
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
NKUTHA-NKONTWANA. J
Introduction
[1]
In
this application, the applicants seek leave to appeal against the
whole judgment and order handed down by this Court on 25 January
2018
wherein I dismissed
their
application to review and set aside the second respondent’s
condonation ruling dated 3 March 2016 under case number
GAJB165-16.
The
application is opposed by the third respondent.
[2]
The
applicants filed their written submissions outside the proscribed
period in terms Rule 30(3A) of this Court’s Rules read
together
with Item 15 of this Court’s Practice Manual.
Condonation
application
[3]
The
application for leave to appeal was served and filed on 15 February
2018.
[1]
The applicants’
written submissions were only filed on 27 March 2018, three weeks
late. The explanation given by the applicants
is that the parties had
been involved in settlement discussions prior and after the launching
of the application for leave to appeal.
As a result, there was an
understanding that the application for leave to appeal would be
suspended pending the outcome of the
settlement discussion.
[4]
However,
it is clear from the correspondence between the parties’
attorneys of record that the applicants proposed the settlement
discussions on 1 March 2018, the due date for filing their written
submissions. Although the third respondent was not opposed to
the
proposed settlement discussions, it was adamant that the applicants
should still file their written submissions and request
the Court’s
permission to suspend the leave to appeal pending the outcome of the
settlement discussions.
[5]
In
fact, the third respondent dispelled every misunderstanding that
might have existed at that time with regard to the applicants’
written submissions in its letter dated 2 March 2018 referred to in
the third respondent’s letter dated 16 March 2018. The
third
respondent was also amenable to allow the applicants to file the
written submissions by 9 March 2018 and undertook not to
oppose the
application for condonation. Notably, the third respondent sternly
warned the applicants not to use the settlement discussions
as reason
for non-compliance with the prerequisites as that would not be true.
[6]
The
applicants failed to file the written submission on 9 March 2018,
notwithstanding. On 16 March 2016, the third respondent filed
its
written submissions in opposition. The first issue raised therein is
the applicants’ failure to file their written submissions
in
support of the leave to appeal. The third respondent’s prayer
is that the application be dismissed with punitive costs
on this
ground alone.
[7]
The
applicants were seemingly surprised by the turn of events because
they had been expecting a counter offer from the respondent,
so they
argued. On the other hand, Ms Bosch, the applicants’ attorney
and the deponent to their founding affidavit in support
of the
condonation application, asserts that she was not available to deal
with the matter between 19 and 23 March 2018 because
she was involved
in a trial in this Court.
[8]
It
is evident that the applicants did not heed the call by the third
respondent to file their written submissions even though the
settlement discussions were being undertaken and that, in so doing,
not to use the settlement discussions as the reason for delay.
To go
ahead and shamelessly use the settlement discussion as the excuse for
the delay is obviously disingenuous.
[9]
Ms
Bosch’s unavailability could not have absolved the applicants
from adhering to the Rules and Practice Manual of this Court.
The
city of Johannesburg is not short of attorneys and advocates, as such
the applicants could have found her replacement with
ease. The
applicants chose their attorneys and must stand or fall by their
advice or laxity. In
SA
Post Office Ltd v Commission for Conciliation, Mediation and
Arbitration and Others,
[2]
the Labour Appeal Court (LAC) endorsed its earlier decisions where it
was held that ‘
an
applicant seeking condonation cannot rely on the negligence of its
legal representatives as a reason for not complying with the
prescribed time periods’.
[10]
The
reasons proffered for the delay in filing the applicant’s
written submissions are clearly irrational and unacceptable.
On this
ground alone, the application stands to be dismissed. However, I deem
it proper to consider the merits for finality.
Merits
[11]
Interestingly,
in the judgment I upheld the second respondent’s ruling
dismissing the applicant’s application for condonation.
The
referral to the first respondent (CCMA) was late by almost five
months and the reason proffered by the applicants was that
they had a
mistaken belief that the applicant employees would be employed by the
third respondent’s successor service providers
who had
successfully tendered for cleaning services at AngloGold. The alleged
mistaken belief was held despite the fact that the
applicants’
unsuccessfully participated in the tender process to replace their
employer, the third respondent. Also, they
had referral of a
severance pay dispute to the CCMA immediately after the applicant
employees were served with notices of termination.
[12]
Given
the extent of the delay and irrational explanation, I was disinclined
to interfere with the second respondent’s ruling
dismissing the
condonation application. Cleary, the applicants have a tendency of
not complying with the prescribed time periods.
[13]
It is trite
that the applicable test in an application for leave to appeal
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.
However,
the
LAC
has cautioned this
Court
that the
test
ought not be applied unconscientiously in light of the statutory
imperative of expeditious resolution of labour disputes. In
Martin
and East (Pty) Limited v National Union Mineworkers and Others,
[3]
per Davis JA, LAC commented as follows:
‘…
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, as should this
Court when petitions are granted.
There
are two sets of interests to consider. There are the interests
of the parties such as appellant, namely who are entitled
to have
their rights vindicated, if there is a reasonable prospect that
another court might come to a different conclusion.
There
are also the rights of employees who land up in a legal
“no-man’s-land” and have to wait years for an
appeal (or two) to be prosecuted.
This
was a case which should have ended in the labour court. This
matter should not have come to this court. It stood
to be
resolved on its own facts. There is no novel point of law to be
determined nor did the Court
a
quo
misinterpret
existing law.
There
was no incorrect application of the facts; in particular, the
assessment of the factual justification for the
dismissals/alternative
sanctions.
I
would urge labour courts in future to take great care in ensuring a
balance between expeditious resolution of a dispute and the
rights of
the party which has lost. If there is a reasonable prospect that the
factual matrix could receive a different treatment
or there is a
legitimate dispute on the law, that is different. But this kind
of case should not reappear continuously in
courts on appeal after
appeal, subverting a key purpose of the Act, namely the expeditious
resolution of labour disputes
.’
(Emphasis added)
[14]
Having
considered all the grounds of leave to appeal
,
I am persuaded that the
applicants failed to make out a case that another Court might
reasonably arrive at a decision different
to the one reached by this
Court. The leave to appeal should, therefore, be refused.
[15]
As a
rule of practice, costs do not follow the result in matters before
this Court. However, this is a typical case where the applicants
should pay the costs. I have taken into account the applicants’
flagrant failure to adhere to the prescribed time period,
notwithstanding the third
respondent’s
stern
warning. Regardless, I do not think that the cost order should be
punitive.
[16]
In
the result, the following order is made:
Order
1.
The
applicants’ application for leave to appeal against the
judgment handed down on 25 January 2018 is dismissed.
2.
The
applicants are
to
pay the third respondent’s costs.
_____________________
P.
Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
[1]
The original copy was filed 16 March 2018.
[2]
[2011] ZALAC 16
;
[2012] 1 BLLR 30
(LAC); (2011) 32 ILJ 2442 (LAC) at
para 21, see also
Superb Meat Supplies CC v
Maritz
(2004) 25 ILJ 96 (LAC) at 100I-101A.
[3]
[2013] ZALAC 35
; (2014) 35 ILJ 2399 (LAC) page 16 lines 12 - 25 and
page 17 lines 1 – 18; See also
National Union of
Metalworkers of South Africa and Others v Columbus
Stainless [2016]
ZALCJHB 344 at paras 2-3.