About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2018
>>
[2018] ZALCJHB 369
|
|
Naledi Local Municipality v South African Municipal Workers Union (SAMWU) obo Ngalo and Others (JR2417/2013) [2018] ZALCJHB 369 (30 October 2018)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JR 2417/2013
In
the matter between:
NALEDI
LOCAL
MUNICIPALITY
Applicant
and
SOUTH
AFRICAN MUNICIPAL WORKERS UNION
(SAMWU)
obo D NGALO & 21
OTHERS
First Respondent
S
VAN WYK
N.O.
Second Respondent
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL (SALGBC)
Third Respondent
Heard:
In Chambers
Delivered:
30 October 2018
Summary:
Leave to appeal application – served timeously but filed more
than two years out of time
– no explanation or application for
condonation – submissions on leave to appeal also filed late –
appeal in
any event lacking prospects of success – application
for leave to appeal dismissed.
JUDGMENT – LEAVE
TO APPEAL
MOULTRIE
AJ
[1]
This is an application for leave to appeal
against a judgment delivered on my behalf by Cele J on 5 May 2016.
[2]
The procedural history of the matter after
delivery of the judgment is of significance.
[3]
It appears from the copy of the application
for leave to appeal which eventually made its way into the court file
(the circumstances
are explained below) that it was originally signed
by the attorneys for the applicant
on 15
May 2016
. It was then physically served on the first
respondent’s attorneys, who stamped and signed it in
confirmation of receipt
on 20 May 2016.
Although
the document also bears the address of the registrar of this court at
its physical seat in Braamfontein and its fax number,
neither the
original document, nor any faxed version thereof, appears in the
court file. The applicant has furthermore not sought
to contend that
the document was ever despatched to the registrar, either by
registered post or by fax.
[4]
It would appear from the contents of the court file that on
the same day that they received the application for leave to appeal
(i.e. 20 May 2016), the first respondent’s attorneys despatched
by registered post an application (seemingly prepared on 18
May 2016)
in terms of section 158(1)(c) of the Labour Relations Act, 66 of 1995
seeking to have the arbitration award dated 4 November
2013 made an
order of court. This application was received by the registrar’s
office and bears the date-stamp of 2 June 2016.
On 8 September 2016,
the first respondent’s attorneys delivered a notice in terms of
Rule 22B confirming that the court file
had been paginated and
indexed. A copy of the index of the section 158(1)(c) application was
annexed. The duly bound, indexed and
paginated section 158(1)(c)
application is in the court file.
[5]
On about 3 May 2018, almost exactly two
years after the judgment was delivered, I was telephonically
contacted by the Judge President’s
associate who informed me
that the first respondent had enquired about an application for leave
to appeal in the matter, and asked
whether I was aware of any such
application. I was not. On the same day, the Judge President’s
associate addressed an email
to the applicant’s attorneys in
which she correctly advised that: “
[u]pon
perusal of the court file I discovered that there is no copy of the
application for leave to appeal and even the copy that
[the first
respondent] provided me with … doesn’t have the court
stamp, meaning you only served the respondents and
not the court. And
since your application for leave to appeal … doesn’t
have [a] court stamp it means there is no
application brought to this
court. Therefore if you wish to continue with the application you
will have to first file with the
court, then serve the respondents
and file the heads of arguments
”.
[6]
On 17 August 2018
,
a
hard-copy (but not the original) of the application for leave to
appeal was filed at the office of the registrar.
The document
in the court file bears an original stamp of the registrar indicating
the date of filing as 17 August 2018. This was
the first time that a
copy of the application for leave to appeal reached this Court, more
than two years and three months after
the delivery of the judgment.
[7]
On 28 August 2018, the Judge President’s
associate addressed correspondence to both sets of attorneys noting
the filing of
a copy of the application for leave to appeal on 17
August 2018 and drawing their attention to the provisions of
paragraph 15 of
this Court’s 2013 practice manual, as well as
Rule 30(3A) of the Rules.
[8]
On 29 August 2018, the first respondent’s
attorneys addressed correspondence to the Judge President’s
associate “
placing on record
”
that:
a.
The application for leave to appeal had
been “
served and filed
”
on 15 May 2016 – though no basis was indicated to suggest such
filing had indeed taken place.
b.
The first respondent’s notice of
intention to oppose had been
“
served
”
on
30 May 2016. Although no allegation was made that this document was
duly filed, a copy of a post office document indicating that
a
registered letter with reference RC 097 648 042 ZA had been posted to
the Registrar on that day, was attached to the letter.
Neither the
original of this document, nor a copy thereof bearing the registrar’s
stamp is contained in the court file.
c.
On 30 September 2016, after the applicant
had failed to deliver its submissions in relation to the leave to
appeal as contemplated
in paragraph 15.2 of this court’s
practice manual, the first respondent’s attorneys had “
served
”
their counsel’s written submissions in relation thereto.
Again,
no allegation was made that this document was
duly filed, but a photocopy of such a document bearing the
registrar’s stamp
of 30 September 2016, as well as a signature
purporting to be that of the first respondent’s attorney dated
the same day
was attached to the letter. Neither the original
document nor a copy thereof bearing an original stamp is in the court
file. The
only evidence that the document was indeed filed is thus
the photocopied annexure to the letter.
[9]
On 3 September 2018, the applicant’s
attorneys faxed their submissions in relation to the application for
leave to appeal
both to the first respondent’s attorneys and
the registrar. No
attempt was made to explain the late
delivery of the document and no explanation was given as to the
circumstances under which a
copy of the application for leave to
appeal had been filed on 17 August 2018. The applicant did not
dispute the statements in the
Judge President’s associate’s
email of 3 May 2018 and letter of 28 August 2018 that no application
for leave to appeal
had been filed before 17 August 2018. No
application for condonation, conditional or otherwise, was delivered
in relation to the
application for leave to appeal. A copy of the
submissions was, however, filed with the registrar’s office on
25 September
2018, as evidenced by the fact that the document in the
court file bears an original stamp of that date.
[10]
Section 166(1) of the LRA entitles a party
to apply to the Labour Court for leave to appeal to the Labour Appeal
Court against any
final judgment of the Labour Court. In terms of
Rule 30(2), such an application must be made at the latest within 15
court days
of the date of the judgment, save that the court may
extend that period on good cause shown. Paragraph 15.3 of this
court’s
practice manual (2013) stipulates that an application
for leave to appeal must be filed with the registrar in charge of
appeals.
Rule 5(1) stipulates that documents may be filed with the
registrar either by physical delivery, or by sending a copy thereof
by
registered post, or by faxing the document. Rule 5(2)(b)
stipulates that a document sent by registered post is considered to
have
been filed on the date on which it was “
received”
by the registrar. A document sent by fax is regarded as having been
filed “
on completion of the whole
of the transmission of the fax”
,
but the second sentence of Rule 5(3) adds the requirement that “
the
original document must be lodged within 5 days of it being faxed
”.
Paragraph 15.1 of the practice manual further requires that a
copy of any application for leave to appeal must, in addition to
being
filed with the relevant registrar, “
also
” be
served on the judge’s secretary or (if that person is
unavailable), on the secretary of any other judge in the
seat where
the matter was heard.
[11]
Save for what appears to be a ‘throwaway’
remark in the first respondent’s attorney’s letter of 29
August
2018, there is no evidence that the application for leave to
appeal was filed by any of the methods envisaged in Rule 5 prior to
17 August 2018. Moreover, the original document was not lodged with
the registrar as required by the first sentence of Rule 5(3),
which
would appear to me to apply equally to all filing methods permitted
by the Rule. There is furthermore no suggestion that
the direction
contained in paragraph 15.1 of the practice manual was complied with.
[12]
In the absence of an application by the
applicant to condone its failure to comply with Rule 30(2), let alone
a showing of good
cause therefore, the application for leave to
appeal falls to be dismissed. I associate myself fully with the
analysis of Molahlehi
J in paragraphs 4 and 5 of
MCC
Contractors (Pty) Ltd v Johnston NO & others
(2012) 33 ILJ
2096 (LC), the facts of which are in no material respect
distinguishable from the current matter.
[13]
I would add that even if I were to ignore,
or condone, the applicant’s non-compliance with Rule 30(2), the
parties’
respective submissions in respect of the application
for leave to appeal were required, under
Rule 30(3A), to have
been “
delivered on or before a date fixed
by the judge
”. The relevant dates
have been fixed by means of paragraph 15.2 of the practice manual.
They are as follows:
“
[w]ithin
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”.
It
is apparent that the applicant made no effort to comply with this
direction. Given that the direction constitutes the ‘fixing’
of the dates, non-compliance requires condonation. Condonation is,
however, not sought.
[14]
Finally, I have in any event considered the
submissions filed by the applicant in support of the application for
leave to appeal,
together with those filed on behalf of the first
respondent. I am not persuaded that there are any reasonable
prospects of success
on appeal. Apart from the fact that (as I noted
in footnote 10 of the judgment) the first respondent’s counsel
abjured any
reliance
at the hearing of the review application
on the contention that the employment of the applicant’s
members would not have complied
with the provisions of the Municipal
Systems Act, 32 of 2000, such a contention would be of no assistance
to the applicant, even
if true.
[15]
This is because such non-compliance would not have rendered
the employment of the applicant’s members a nullity or void
ab
initio
(compare
Wierda Road West Properties (Pty) Ltd v Sizwe
Ntsaluba Gobodo Inc
2018 (3) SA 95
(SCA) at para 22 –
23 and 28). At best, the employment of the members would have been
voidable and, in the absence of any
attempt by the applicant to set
it aside, it must stand (see
South African
Airways SOC Ltd v National Transport Movement
(2016)
37 ILJ 2128 (LC)
at paras 12 – 16)
[16]
I make the following order:
a.
The application for leave to appeal is
dismissed.
b.
The applicant is ordered to pay the first
respondent’s costs.
_______________
RJA
Moultrie AJ
Acting
Judge of the Labour Court of South Africa