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[2018] ZALCCT 6
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Modiokgotla v Head of Department: Northern Cape Provincial Govt: Dept of Education and Others (C177/2016) [2018] ZALCCT 6 (28 February 2018)
REPUBLIC
OF SOUTH AFRICA
Not
reportable /
of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
C
ase
no: C 177/16
In
the matter between:
A
M MODIOKGOTLA
Applicant
and
HEAD
OF DEPARTMENT:
NORTHERN
CAPE PROVINCIAL
GOVT:
DEPT OF EDUCATION
First Respondent
J
B MTHEMBU N.O.
Second Respondent
ELRC
Third Respondent
Delivered
:
28 February 2018
RULING
ON LEAVE TO APPEAL
STEENKAMP
J
Introduction
[1]
The applicant seeks leave to appeal against my judgment of 17 October
2017.
[2]
In that judgment, I dismissed the applicant’s application for
condonation for the late filing of a review application.
Ironically,
despite that, this application for leave to appeal is also late and
the applicant, once again, applies for condonation.
His submissions
on the application for leave to appeal are also filed more than a
month late. And the whole sequence of events
was set in motion
because the applicant’s counsel, Mr Lechwano, did not abide by
the agreed timeframe to file heads of argument
in the initial
application.
Evaluation
[3]
In dealing with this application, I shall briefly restate the test in
applications for leave to appeal; and against that background,
deal
with the application for condonation.
The test
[4]
As Van Niekerk J noted in
Seatlholo and Others v
Chemical, Energy, Paper, Printing, Wood and Allied Workers' Union and
Others
[1]
:
“
The traditional formulation of
the test that is applicable in an application such as the present
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. As
the respondents observe, the use of the word ‘would’ in
s17(1)(a)(i) are indicative
of a raising of the threshold since
previously, all that was required for the applicant to demonstrate
was that there was a reasonable
prospect that another court might
come to a different conclusion (see
Daantjie Community and others
v Crocodile Valley Citrus Company (Pty) Ltd and another
(75/2008)
[2015] ZALCC 7
(28 July 2015). Further, this is not a test to
be applied lightly – the Labour Appeal Court has recently had
occasion
to observe that this court ought to be cautious when leave
to appeal is granted, as should the Labour Appeal Court when
petitions
are granted. The statutory imperative of the expeditious
resolution of labour disputes necessarily requires that appeals be
limited
to those matters in which there is a reasonable prospect that
the factual matrix could receive a different treatment or where there
is some legitimate dispute on the law (See the judgment by Davis JA
in
Martin & East (Pty) Ltd v NUM
(2014) 35
ILJ
2399
(LAC), and also
Kruger v S
2014 (1) SACR 369
(SCA) and the
ruling by Steenkamp J in
Oasys Innovations (Pty) Ltd v Henning &
another
(C 536/15, 6 November 2015).”
[5]
It is against that background that the prospects of success in this
application for condonation must be considered.
Condonation
[6]
Once again, as in the judgment
a quo
,
the Court must consider the well-trodden principles set out in
Melane
v Santam Insurance Co Ltd.
[2]
[7]
Rule 30(2) of this Court is clear. An application for leave to appeal
must be delivered within 15 days of the date of judgment,
except that
the court may, on good cause shown, extend that period. And the
Practice Manual that has been in existence since April
2013 further
puts it beyond doubt that awaiting the transcript of an
ex tempore
judgment does not delay that time period. It runs from the day
judgment is handed down.
[8]
In this case, both the applicant and his counsel, Mr Lechwano, were
in court when I handed down judgment on 17 October 2017.
The
prescribed time period lapsed on 7 November 2017. Yet he only
delivered his application for leave to appeal on 28 December
2017,
without any application for condonation. He only delivered that
application on 12 January 2018, more than two months late,
and only
after the Department (the first respondent) had raised an objection
to its late delivery. And this despite the fact that
the very
judgment he wishes to take on appeal considered an application for
condonation and spelt out the principles and consequences.
And then,
rather than keeping to the further time periods set out in rule
30(3A) read with clause 15.2 of the Practice Manual,
he only foiled
his submissions on 20 February 2018, after the Court had directed him
to do so, and not by 12 January 2018, as he
should have done. I have
nevertheless considered those submissions.
[9]
Despite having been represented by attorneys and counsel throughout,
the applicant gives no explanation for the delay other
than to say
that he was “in despair” and that he “could never
come to peace with the fate which I had been dealt”.
He gives
no explanation why, if he wished to seek leave to appeal, his
attorneys and counsel did not advise him of the applicable
timeframes, or indeed if they had done so. In short, he gives no
plausible explanation for the delay.
[10]
It is only “on or about” 15 November 2017, after the
prescribed time periods had already lapsed, that he so much
as
instructed his attorneys to obtain a transcript of the judgment that
had been handed down on 17 October 2017 in his presence.
He received
the signed judgment on 30 November 2017. And yet his counsel only
drafted the application by 28 December 2017, almost
a month later;
and then his attorneys delivered it without applying for condonation.
[11]
Apart from the excessive delay and the poor explanation therefor, the
applicant has no prospects of success in the application
for leave to
appeal, given the test set out above. The factual matrix against
which the arbitrator found against him is clear.
And in deciding
whether or not to grant condonation, the Court exercises a judicial
discretion. There is no reasonable prospect
that another court would
interfere with that discretion, especially given that the applicant
now concedes that his explanation
for the late filing of his review
application was “needlessly vague”.
Conclusion
[12]
The applicant has not shown good cause for his failure to comply with
rule 30(2).
[13]
With regard to costs, the applicant and his legal team were well
aware of the applicable time periods. They already had a judgment
against them where the relevant principles relating to condonation
were spelt out. Yet they delayed in bringing this application;
initially did not even attempt to show good cause for their
non-compliance; and only attempted to do so, unsatisfactorily, once
the first respondent had raised it. The first respondent had to incur
further unnecessary costs in opposing this application. There
is no
reason in law or fairness why the applicant should not bear those
costs.
Order
[14]
The application is dismissed with costs.
_______________________
Steenkamp
J
APPEARANCES
APPLICANT:
Fixane
attorneys, Bloemfontein.
FIRST RESPONDENT:
Frans
Petersen
Instructed
by Mjila & Partners, Kimberley.
SECOND
AND THIRD
RESPONDENTS
Solomon Holmes attorneys,
Johannesburg.
[1]
(2016) 37
ILJ
1485 (LC) par [3].
[2]
1962 (4) SA
531
(A).