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[2018] ZALCJHB 319
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Food and Allied Workers Union v Cold Chain (Pty) Ltd (J32/14) [2018] ZALCJHB 319 (3 October 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: J32/14
In
the matter between
:
FOOD
AND ALLIED WORKERS
UNION
RESPONDENT/APPLICANT
and
THE
COLD CHAIN (PTY)
LTD
APPLICANT/RESPONDENT
Considered:
In Chambers
Delivered:
03 October 2018
JUDGMENT - LEAVE TO
APPEAL
SHAI,
AJ
Introduction
[1]
On 13 May 2014, I delivered a judgment, the
order of which was as follows:
1.
‘’
Permission is granted for the
matter to be heard on an expedited basis.
2.
That the notices of dismissal issued on the
13
th
December 2013 were issued prematurely and are of no force and effect.
3.
That the members dismissed in terms of the
notices issued on the 13
th
December 2013 are reinstated until such time that the Responded has
complied with a fair procedure.
4.
The Respondent is ordered to pay the costs
of this application.”
[2]
The applicant has now applied for leave to
appeal whole judgment as well as the above order. The application for
leave to appeal
was accompanied by an application for condonation of
the late filing thereof. Both applications are unopposed.
Application
for condonation
Degree
of lateness
[3]
The
judgment was delivered on 13 May
[AA1]
2014;
hence the application for leave to appeal should have been filed by
the 2 June 2014. It was filed on 11 March 2015 and
it is therefore
late by about nine months which is a considerable delay.
Explanation
of the delay
[4]
The
applicant submitted that the judgment was based on the principles as
outlined in the case of
NUM
vs De Beers Consolidated Mines Pty(Ltd)
[1]
and
De
Beers Group Services Pty Ltd vs National Union Of Mine Workers
[2]
.
The effect of these decisions was that notices issued prematurely in
terms of section 189A (8) read with 189A (2) of the Labour
Relations
Act
[3]
(LRA) were of no force
and affect. The applicant submitted that this position was
unassailable at the time the application for
leave to appeal should
have been filed.
[5]
The
applicant submitted that since then the courts of law in the case of
Edcon
vs Karin Steenkamp and others
[4]
,
delivered on 3 March 2015 held that the above cases were wrongly
decided. In this case the court stated as follows:
“
it
accordingly could not have been the intention of the legislature that
a failure to comply with section 189A (8), read with section
189A(2)
of the LRA would result in the dismissals being invalid”
[6]
The applicant further contended that since
the basis on which the matter was determined was held to have been
wrong, there now exists
a proper basis on which to seek leave to
appeal in respect of the said judgment.
Importance
of the matter / prejudice
[7]
The applicant submitted that if the
application is not granted, it will suffer prejudice in that it would
not have an opportunity
to ventilate this matter, more so that
prejudice would arise from a decision adjudged to have been decided
on wrong principle.
Further, the applicant submitted, that no action
has been taken in line with the very judgment sort to be appealed
against. Thus
nothing needs to be undone. It was submitted further
that the prejudice that the applicant would suffer outweighs that of
the respondent.
Further, it was argued that the matter is of extreme
importance, in particular in line with the new legal development
outlined
above.
Prospect
of success
[8]
The applicant submitted that in line with
the new legal development outlined above, it has good prospect of
success.
Legal
exposition
[9]
In
the case of
Masixole
Myosane v. National Bargaining Council for Chemical Industry
and others
[5]
the Court said the following in respect of application for
condonation.
“
[7] The factors
that need to be taken into account when determining whether there is
sufficient cause to grant condonation were
set out in
Melane v
Santam Insurance Co Ltd 1962 (4) SA at 532
and involves weighing
together the following factors; which are interrelated : degree of
lateness, explanation thereof, the prospects
of success and the
importance of the case. The court went on and said that although
these factors are interrelated, are not individually
decisive, if
there are prospects of success there would be no point in granting
condonation.
[8] The Melane decision
was followed in many subsequent decisions. In the case of
Moila v
Shai NO and Others
(2007) 16 LAC 1.23.1
reported at (Butterworth)
2007 JOL 19117
LAC, Zondo JP cited the case of
Chetty v Law
Society, Transvaal,
1985 (2) SA 756
AD
with approval and said:
“In Chetty v Law Society, Transvaal
1985, (2) SA 756
(AD)
Miller JA, on behalf of the unanimous Court, dealt with the term
“sufficient cause” or “good cause”
when used
in the context of an application for rescission of a Judgement. At
765 D-E he said:
“
For
obvious reasons a party showing no prospect of success on the merits
will fail in an application for rescission of a default
judgement
against him, no matter how reasonable and convincing the explanation
of his default. An ordered judicial process would
be negated if, on
the other hand, a party who could offer no explanation of his default
other than his disdain of rules was nevertheless
permitted to have a
judgement against him rescinded on the grounds that he had reasonable
prospects of success on merits.”
[9] The court went
further to say that this principle should equally be applicable to
the application for condonation.
[10] The court went
further at 33, and in relation to the excessiveness of the delay and
said:
“
If
ever there was a case in which one can conclude that good cause has
not been shown for Condonation without even considering prospect
of
success, then this is it. When, in an application for Condonation the
delay is excessive and an explanation been given for that
delay or an
“explanation” has been given, but such explanation
amounts to no explanation at all, I do not think it
is necessary to
consider the prospects.”
[11] In the case of
Kritzinger v CCMA and Others (JR 2254/05
(2007) ZALC 85
(November
2007) Molahlehi J
said the following in relation to the test as
initiated in
Melane v Santam Insurance Co. Ltd.
1962 (4) SA A532:
“
These
factors are not individually decisive but are interrelated and must
be weighed against each other. In weighing the factors
for instance,
a good explanation for the delay in lateness may assist the
application in compensation for weak prospects of success.
Similarly
strong prospects of success may compensate for the inadequate
explanation and the long delays”
[12] What it means
therefor is that the court when exercising its discretion will
consider the circumstances of each case to come
to a reasonable
conclusion”.
[10]
Having read submissions herein, and having
applied my mind there on, I am of the opinion that a good case for
condonation has been
made. The period of delay,
albeit
long, is mitigated by a plausible explanation and good prospect of
success. This together with the importance of the case makes
a
compelling case for condonation. I consequently grant condonation of
the late filing of the application for leave to appeal.
Application
for leave to appeal
[11]
The applicants captured the grounds for
appeal as follows:
§
“
The entire case of the Respondent as
placed before the learned Judge was based upon the interpretation and
application of Section
189A (8). The Respondent contended that the
notices of termination of employment issued to members of the
Respondent on the 13
th
December 2013, were issued prior to the expiry of the time limit as
contemplated by section 189A(8) and were thus prematurely issued
and
as a result were null and void. This case was the only basis for the
Respondent’s application in terms of Section 189A
(13) before
the learned judge.
§
The Respondent never sought to challenge
any aspect of the actual consultation process conducted between the
Appellant and the Respondent
and never sought to contend that such
process was in any way unfair.
§
The entire case before the learned Judge
was thus founded on the judgments in Freund AJ in
National
Union of Mineworkers v De Beers Consolidated Mines (Pty) Ltd
,
Davis JA in
De Beers Group Services
(Pty) Ltd v National Mineworkers
. In
Revan Civil Engineering Contractors and
Others v National Union of Mineworkers and Others
,
Landman AJA applied ratio in
De Beers
Group Services
. In short, the core
ratio
of
all these judgments were, in short, that any notice of termination of
employment issued prior to the expiry of the time period
as
contemplated by Section 189A(8) were null and void, and consequently
invalid. The learned Judge, in casu, applied this ratio
in coming to
the conclusion the learned Judge did in his judgment.
§
In
Edcon v
Karin Steenkamp and Others
the Labour
Appeal Court has now, on 3
rd
March 2015, and following a detailed consideration of the judgments
referred to above, decided as follows: “It accordingly
could
not have been the intention of the legislature that failure to comply
with section 189A(8), read with section 189A(2) of
the LRA, would
result in the dismissals being invalid.
§
THE COURT IN EDCON CONCLUDED:
“
In
the premises, we are persuaded that non-compliance with section 189A
(8) of the LRA was not intended by the legislature to result
in the
invalidity or nullity of any ensuing dismissals. Consequently, we are
of the opinion that the decisions in
De
Beers Group services (Pty) Ltd v NUM
and
Revan Civil Engineering Contractors
and Others v NUM
were wrongly decided.”
§
Therefore, the judgment of the learned
Judge in
casu
was squarely based and founded on judgments that have been held to
have been wrongly decided. In terms of the judgment in Edcon,
the
notices of dismissal issued by the Appellant on 13
th
December 2013, even if they were issued prematurely and prior to the
expiry of the time period as contemplated by section 189A(8),
could
not have been held null and void, and consequently invalid.
§
The Court in
Edcon
determined that the failure to comply with such time limits was only
a procedural issue, and could be challenged in litigation
process
under section 189A(13) only on the basis of case of procedural
unfairness. In such application, the issue of procedural
fairness
would be holistically considered. The Respondent in
casu
raised no case of procedural unfairness in its section 189A (13) and
never contended that the procedure followed by the Appellant
in
arriving at the point where the notices of dismissal were issued was
unfair. As a result, there is no basis on which the learned
Judge
could have granted the order.
§
Therefore, it is the respectful contention
of the Appellant that the learned Judge erred in coming to the
judgment and making the
order that the learned Judge did on 13
th
May 2014.
§
The learned Judge thus erred in law in not
dismissing the Respondent’s section 189A (13) application.
§
The learned Judge erred in awarding costs
against the Appellant per se in the circumstances.”
The
test applicable in application for leave to appeal
[12]
The
test in an application for leave to appeal was stated as follows in
the case of
Van
der Merwe v Du Plessis
[6]
:
‘
Leave
to appeal is granted only if this Court is satisfied that another
Court might reasonably reach a conclusion different from
that
appealed against.”
[13]
In
National
Union of Metal Workers of SA v Jumbo Products CC
[7]
the Supreme Court of Appeal described the test as one based on
whether there is a reasonable prospect that a court of Appeal may
come to a different conclusion to the one reached by the trial court.
[14]
Having read the submissions and the
judgment herein, and having applied my mind thereon, and taking the
principles outlined above
into account, I am satisfied that another
court may reasonably come to a different conclusion than the one this
court reached.
[15]
In the premise I make the following order:
Order
1.
The application for leave to appeal against
my judgment is granted;
2.
There is no order as to costs.
___________________
Shai
AJ
Acting Judge of the
Labour Court of South Africa
[1]
(2006)
27 ILJ 1909(LC).
[2]
(2011)
32 ILJ 1293(LAC).
[3]
66
of 1995, as amended.
[4]
JS648/13,
JS51/14 and JS 350/14.
[5]
Unreported case - P 191/2010.
[6]
(1999)
20 ILJ 1305 LC, at para 4.
[7]
[1996] ZASCA 87
;
1996
(4) SA 735
SCA at 742 A-B.
[AA1]
Judge-
This was a Saturday. Kindly re-confirm the date