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[2018] ZALCCT 33
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Festus v Department of Health (Western Cape) and Others (C106/15) [2018] ZALCCT 33 (18 September 2018)
REPUBLIC
OF SOUTH AFRICA
Not
reportable
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Case
no: C 106/15
In
the matter between:
Jacob
FESTUS
Applicant
and
DEPARTMENT
OF HEALTH (WESTERN CAPE)
First
Respondent
PHSDSBC
Second
Respondent
DENOSA
Third
Respondent
Heard:
17 September 2018
Delivered
:
18 September 2018
RULING
ON LEAVE TO APPEAL
STEENKAMP
J
Introduction
[1]
The applicant seeks leave to appeal my judgment of 10 March 2016. The
application for leave to appeal is more than two years
later. He also
applies for condonation.
Condonation
[2]
I shall consider the
application for condonation bearing in mind the well-known principles
in
Melane v Santam Insurance
Co Ltd
[1]
,
Queenstown Fuel Distributors
[2]
and
Lentsane
v HSRC.
[3]
Extent
of delay
[3]
Judgment was handed down on 10 March 2016. The applicant only filed
this application for leave to appeal – dated 25 June
2018 –
on 27 July 2018, together with the notice of motion in his
application for condonation. After inquiries from the Court
his
attorneys sent a copy of the supporting affidavit, which was
apparently signed on 10 June 2018, to the Court by email on 20
August
2018.
[4]
The delay is excessive. That must be weighed up against the
explanation therefor and the prospects of success.
Reasons
for delay
[5]
The reasons for the delay are not persuasive. The applicant has been
legally represented throughout. He has been aware of the
judgment
since at least 14 March 2016. Yet he delayed for more than two years
before applying for leave to appeal. He blames his
erstwhile
attorneys and his trade union, DENOSA, but as this Court has often
confirmed, there is an extent beyond which an applicant
cannot escape
the negligence of his chosen representatives. It is only after two
years that he terminated their mandate and instructed
new attorneys.
He also blames one “advocate Lourens” whom he consulted
in Oudtshoorn. He does not explain who adv Lourens
is, nor does adv
Lourens provide a supporting affidavit. And he provides no
explanation for lengthy periods of delay, including
a period of seven
months when adv Lourens was in possession of the relevant pleadings
and documents until he consulted another
attorney, one Bedi, with
Lourens.
[6]
The applicant instructed his current attorneys in February 2018. Yet
they only launched this application on 24 July 2018. He
says that he
“looked for” another attorney in October 2017, more than
eight months before launching this application;
and he includes email
correspondence between him and his current attorneys from January
2018, six months before they launched this
application. They do not
explain their lackadaisical approach.
[7]
Despite the excessive delay and poor explanation, I will nevertheless
consider the prospects of success.
Prospects of success
[8]
In his submissions, the
applicant’s counsel makes the startling submission that the
Court erred in applying the test on review
that it did –
i.e. that the conclusion reached by the arbitrator was “not so
unreasonable that no other arbitrator
could have come to the same
conclusion”. Mr
Dyanti
goes so far as to say that “applying such a permissive
interpretation” would “render the facility to review a
decision of an arbitrator an almost impossible task”. Yet that
is the very test outlined by the SCA in
Sidumo
more than ten years ago,
and cited in the judgment
a
quo
[at para 20] and in the
headnote. And even last week the Constitutional Court reiterated that
test in
Duncanmec
[4]
:
“”
Sidumo
cautions
against the blurring of the distinction between appeal and review and
yet acknowledges that the enquiry into the reasonableness
of a
decision invariably involves consideration of the merits. So as
to maintain the distinction between review and appeal
this Court
formulated the test along the lines that unreasonableness would
warrant interference if the impugned decision is of
the kind that
could not be made by a reasonable decision-maker.
This test means that the reviewing
court should not evaluate the reasons provided by the arbitrator with
a view to determine whether
it agrees with them. That is not
the role played by a court in review proceedings. Whether the
court disagrees with
the reasons is not material.
The correct test is whether the award
itself meets the requirement of reasonableness. An award would
meet this requirement
if there are reasons supporting it. The
reasonableness requirement protects parties from arbitrary decisions
which are not
justified by rational reasons.
[9]
How Mr
Dyanti
could argue that this Court should now depart
from that binding authority that has been cited in hundreds of review
judgments over
the last ten years, simply beggars belief. It is also
indicative of the applicant’s lack of prospects of success.
[10]
The test for leave to appeal
has now been codified in s 17(1) of the Superior Courts Act.
[5]
That is whether the appeal would have reasonable prospects of
success; or there is some other compelling reason why the appeal
should be heard.
[11]
This appeal would have no
reasonable prospects of success. The arbitrator properly considered
the evidence and the probabilities.
His conclusion passes the
Sidumo
test. And there is no other
compelling reason why the appeal should be heard. To argue, as Mr
Dyanti
does,
that “the issues in relation to the standard that an
arbitrator’s adjudication of matters is subject to
in South
Africa is a matter of considerable importance to labour laws”
is facile. This Court, the Labour Appeal Court, the
SCA and the
Constitutional Court have all pronounced on that standard; and it has
formed the subject of at least one self-standing
academic work
[6]
and a comprehensive section in at least one other.
[7]
Conclusion
[12]
The delay is excessive; the explanation therefor is poor; and so are
the prospects of success in the application for condonation
as well
as the application for leave to appeal. The application must fail.
[13]
There is no reason in law or fairness why costs should not follow the
result. The applicant has forced the Department to incur
unnecessary
further costs in pursuing this excessively late application,
especially considering its poor prospects of success.
Order
The
application for condonation – and thus the application for
leave to appeal – is dismissed with costs.
_______________________
Steenkamp
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
D M Nyathi
Instructed
by Nico Smit Inc, George.
FIRST
RESPONDENT: V Barthus
Instructed
by the State Attorney, Cape Town.
[1]
1968 (4) SA
531 (A).
[2]
Queenstown
Fuel Distributors cc v Labuschagne N.O.
[2000]
1 BLLR 45
(LAC).
[3]
(2002) 23
ILJ
1433
(LC).
[4]
Duncanmec (Pty) Limited v
Gaylard NO and Others
(CCT284/17)
[2018] ZACC 29
(13 September 2018) pars [41] –
[43].
[5]
Act 10 of
2013.
[6]
Myburgh &
Bosch,
Reviews
in the Labour Courts
(LexisNexis
2016).
[7]
Cf Du Toit
et
al, Labour Relations Law: A Comprehensive Guide
(6
ed LexisNexis 2015) Ch III.