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[2018] ZALCJHB 224
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South African Maritime Safety Authority (SAMSA) v Dziruni (J1818/17) [2018] ZALCJHB 224 (3 July 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: J 1818/17
In the
matter between:
SOUTH AFRICAN MARITIME
SAFETY
AUTHORITY
(SAMSA)
Applicant
and
MURORO
DZIRUNI
Respondent
Decided: In Chambers
Delivered: 3 July 2018
JUDGMENT: LEAVE TO
APPEAL
TLHOTLHALEMAJE,
J
[1]
The
respondent, Mr Muroro Dziruni approached this Court on urgent basis
seeking to have a settlement agreement entered into between
himself
and those representing the applicant, the South African Maritime
Safety Authority (SAMSA) made an order of court in terms
of the
provisions of section 158(1)(c) of the Labour Relations Act (LRA).
[1]
[2]
SAMSA had opposed the application,
contending that persons who signed the settlement agreement on its
behalf lacked the necessary
legal authority to do so, and that the
agreement was therefore
ultra vires.
Furthermore, it contended that the
settlement was subject to a review application pending before the
Labour Court.
[3]
The Court heard the matter as one of
urgency, and judgment was delivered on 31 August 2017, in
terms of which the settlement
agreement was made an order of court.
SAMSA was also ordered to pay the costs of that application.
[4]
On 13 October 2017, the
respondent instituted contempt proceedings against the Chief
Operations Officer of SAMSA for failing
to comply with the settlement
agreement which was made an order of court. On 30 October 2017,
the Sheriff of the Court
attended to the business premises of SAMSA
to attach movable goods in satisfaction of the judgment.
[5]
On 31 October 2017, SAMSA filed an application to stay the
writ of execution pending the finalisation of the appeal
process.
That application was heard on 7 November 2017. On
15 December 2017, this Court (per Lagrange J) handed
down
judgment and issued an order in the following terms:
“…
[2] The writ of execution
issued out of the Labour Court on 16 October 2017 under
case number J1818/17, which was attached
as Annexure “JC1”
to the founding affidavit and all steps taken thereunder, are stayed
pending the determination in
respect of the late filing of the
application for leave to appeal against the judgment of the court in
this matter handed down
on 31 August 2017…”
[6]
On
19 October 2017, SAMSA filed an application for leave to
appeal against the whole of the judgment and the order. In
terms of
Rule 30(3A)
[2]
read with
paragraph 15.2
[3]
of the
Practice Manual of the Labour Court (2013), the applicant in an
application for leave to appeal must file written submissions
within
10 days from the date of the delivery of the application. On
28 November 2018, the respondent in the absence of
SAMSA’s
written submissions filed their written submissions in opposition of
the application for leave to appeal.
[7]
As the application for leave to appeal was filed
out of time, on 24 November 2017, SAMA filed an application
for condonation
for its late filing. The explanation for the late
filing of the application for leave to appeal is summarised as
follows:
7.1. SAMSA was not made
aware of the fact that the judgment was scheduled to be handed down
on 31 August 2017. It is common
practice that the Registrar
of the Judge concerned would notify the parties of the date of the
delivery of the judgment, but this
did not take place. On
1 September 2017, the respondent’s attorneys of
record informed SAMSA that the judgment
had been handed down.
7.2. At that time, the
attorney dealing with the matter had taken leave of absence. The
email only came to the attention of the
attorney concerned on
14 September 2017. On 18 September 2017, an
employee of SAMSA’s attorneys of record
attended to the Labour
Court with the intention of uplifting the judgment. The employee was
however informed by the Labour Court
official that the file could not
be located. The employee returned to the Labour Court on several
occasions to try and locate the
file but was unsuccessful each time.
The file was eventually found on 6 October 2017. The
employee is said to have been
told by the Registrar of this Court
that the difficulty in locating the file in the filing room is
attributed to the fact that
the respondent had taken steps to execute
the court order. SAMSA deemed it necessary to obtain the judgment
from the Court so that
it could verify its authenticity.
7.3. SAMSA contends that
the period in which an application for leave to appeal had to be
filed ought to be calculated from 6 October 2017,
the date
in which the judgment was uplifted from the court file. The
application for leave to appeal ought to have been filed on
or before
27 October 2017. Taking into account that the application
was filed on 19 October 2017, it was filed
within the time
limits. The respondent’s attorneys of record wrote to SAMSA
expressing the view that the application was
filed late. SAMSA
however does not share the same view and deny that the application
was filed late. SAMSA nonetheless filed the
condonation application
as a caution and conditionally in the event that this Court holds
that condonation is necessary. In that
eventuality the application
was filed late because:
7.3.1.
The Court did not inform SAMSA of the date of handing down the
judgment.
7.3.2.
On 1 September 2017, after SAMSA was informed by the
respondent that judgment was handed down, SAMSA was nonetheless
compelled to determine the authenticity of the judgment.
7.3.3.
The court file was not available in order to enable SAMSA to
authenticate the judgment, whilst the respondent had already
commenced with the execution of the judgment.
7.4. SAMSA contends that
the late filing was not as a result of gross and reckless disregards
of the time frames laid down by the
Rules. Furthermore, it was
submitted that the delay was not excessive and even if the delay is
calculated from 1 September 2017,
the application would be
18 days late.
[8]
The application for condonation is opposed by the
respondent on the grounds that:
8.1. It was not correct
that SAMSA were not informed of the date of handing down of judgment,
as a notice in that regard was addressed
to both parties. Moreover,
SAMSA was advised by the respondent’s attorneys on record on
1 September 2017, that
judgment was indeed handed down on
31 August 2017.
8.2. A copy of the
judgment was emailed to SAMSA’s attorneys of record on
1 September 2017. It was therefore unnecessary
for SAMSA to
approach the Registrar of this Court to request a copy of the
judgment. SAMSA’s claims therefore amounted to
nothing but a
lie to cover up its negligence and recklessness.
8.3. SAMSA did not
exhaust all means to obtain a copy of the judgment notwithstanding
that it was served with a copy of the judgment
immediately after it
had been handed down.
8.4. The respondent
denies that the application was filed within the time limits provided
for in terms of the Rules. It terms of
Rule 30(2) of the Rules of
this Court, an application for leave to appeal must be filed within
15 days from the date of the judgment.
8.5. SAMSA was notified
by the secretary to the Judge of the date of judgment on
30 August 2017.
Evaluation
[9]
In terms of
Rule 30(2)
[4]
read with Rule 12
[5]
of the Rules of this Court, the period for the filing of the
application for leave to appeal may be extended on good cause shown
by the applicant. In determining whether good cause has been shown,
the court will take into account relevant factors such as the
extent of the delay, the explanation for the delay, prospects of
success (on appeal), and in the whole it must be determined whether
it is in the interest of justice to grant condonation
[6]
.
[10]
In this case, judgment in the main
application was delivered on 31 August 2017. Notices in
that regard as apparent from
the court’s file were sent to both
parties’ attorneys of record on 31 August 2017. A
bare denial therefore
that the applicant was not informed of the
delivery of judgment cannot be sustainable.
[11]
Even if there is any semblance of merit in
the applicant’s denials, the respondent had in opposing the
condonation, pointed
out that a copy of the judgment was also
forwarded to the applicant’s attorneys of record on the same
date it was delivered.
In the absence of any other contention, I have
no reason to doubt that at least as of 31 August 2017, the
applicant was
aware of the judgment. The contention therefore that an
attempt was made to uplift the judgment at some point thereafter to
ascertain
the status of the matter is indeed a lame excuse,
particularly since on the applicant’s own version, it was again
advised
by the respondent’s attorneys of record on 1 September
2017 that judgment had been handed down.
[12]
The excuse that an attorney dealing with
the matter at the time was on leave is equally lame, and it is of no
consequence as to
when he had become aware of the judgment upon his
return, as in any event, he ought to have been aware of it at least
before he
went on leave. It is equally not an acceptable excuse that
the applicant only became aware of the judgment on 6 October 2017
upon
the upliftment of the court file on that date.
[13]
I further fail to appreciate or to
understand the logic behind the applicant’s reasoning that it
needed to verify the authenticity
of the judgment it had been advised
of by the respondent’s attorneys of record, as it is
far-fetched to suspect that attorneys,
who are officers of this court
would fraudulently produce a court judgment. A phone call to the
respondent’s attorneys or
to the Court would have sufficed if
the applicant was for whatever reason still in doubt about the
authenticity of the judgment
in question.
[14]
In line with the above conclusions, I have
no reason to doubt that the applicant was duly notified of the date
on which judgment
was delivered. Even if no appearance was made in
court to note the judgment, a copy in that regard was forwarded to
the applicant’s
attorneys of record and no further steps were
taken.
[15]
The application for leave to appeal was
launched on 19 October 2017 and was therefore some four weeks out of
time. The explanation
proffered by the applicant for the delay is not
only inadequate but as correctly pointed out on behalf of the
respondent, based
on attempts to cover up tardiness in attending to
this matter. As it was also noted by La Grange J in his judgment in
respect of
a further application by the applicant to stay the writ of
execution, the application for leave to appeal was only filed once
the
respondent had attached the applicant’s assets, and in that
judgment, note was also taken of the general dilatory conduct
of the
applicant, inclusive of a failure to attend to several
correspondences from the applicant’s attorneys of record
subsequent
to delivery of the main judgment.
[16]
Inasmuch as the explanation for the delay
is found to be inadequate and/or unacceptable, ordinarily, that would
have been the end
of the matter. However, for the sake of
completeness, and to the extent that the applicant contended that it
had prospects of success,
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.
[17]
In
considering the above test, the Supreme Court of Appeal in
S
v Smith
[7]
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’
[18]
I have had regard to the applicant’s submissions in respect of
the application for leave to appeal and the respondent’s
opposition thereto. I have also reflected on my judgment, and I am
satisfied that the grounds upon which leave to appeal is sought
and
the arguments in that regard have been dealt with at length, and no
purpose would be served in repeating same. On the whole,
and even
upon a consideration of the interests of justice, I am satisfied that
there is no sound, or rational basis for a conclusion
there are
prospects that the Labour Appeal Court may come to a different
conclusion on the merits. In the circumstances, I am satisfied
that
the applicant has failed to show good cause why its tardiness in
attending to the leave to appeal ought to be condoned. Consequently,
the application for leave to appeal ought to be dismissed.
[19]
Further having had regard to the requirements of law and fairness, I
see no reason why the applicant should not be burdened
with the costs
of this application.
[20]
Accordingly, the following order is made;
Order:
1. The application for
condonation for the late filing of the application for leave to
appeal is dismissed;
2. The application for
leave to appeal is dismissed;
3. The applicant is
ordered to pay the costs of this application.
___________________
E.
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
[1]
Act 66 of 1995, as amended.
[2]
(3A) Unless the judge from whom leave to appeal is sought otherwise
directs, the
parties'
respective submissions in respect of the application for leave to
appeal must be-
(a)
in writing; and
(b)
delivered on or before a date fixed by the judge.
[3]
15.2 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. An application for leave
to appeal
will be decided by the judge in Chambers on the basis of the
submissions filed in terms of Rule 30 (3A), unless the
judge directs
that the application be heard in open court.
[4]
Rule30:
Application
for leave to appeal to the Labour Appeal Court
…
(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.
[5]
Rule 12:
Extension
of time limits and condonation
(1) The court may extent
or abridge any period prescribed by these rules on application, and
on good cause shown, unless the court
is precluded from doing so by
an Act.
…
[6]
See
Melane
v Santam Insurance Co. Ltd
1962 (4) SA 531
(A) at 532B-E, where it was held that;
‘
In deciding
whether sufficient cause has been shown, the basic principle is that
the Court has a discretion, to be exercised judicially
upon a
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually relevant
are the
degree of lateness, the explanation therefor, the prospects of
success and the importance of the case. Ordinarily these
facts are
interrelated, they are not individually decisive, save of course
that if there are no prospects of success there would
be no point in
granting condonation. Any attempt to formulate a rule of thumb would
only serve to harden the arteries of what
should be a flexible
discretion. What is needed is an objective conspectus of all the
facts. Thus a slight delay and a good explanation
may help to
compensate prospects which are not strong. Or the importance of the
issue and strong prospects may tend to compensate
for a long delay.
And the Respondent’s interests in finality must not be
overlooked”
[7]
2010 (1) SACR at 576 (SCA)