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[2018] ZALCPE 11
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Massdiscounters (Pty) Ltd t/a Game and Dion Wired v Commission for Conciliation, Mediation and Arbitration and Others (P229/16) [2018] ZALCPE 11 (14 March 2018)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not
reportable
CASE
NO: P 229/16
In
the matter between:
MASSDISCOUNTERS
(PTY) LTD
t/a
GAME AND DION WIRED
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
First
Respondent
SIPHIWO
SMITH
N.O
Second Respondent
GREGORY
KAYSER
Third Respondent
Ruling
issued: 14 March 2018
RULING:
APPLICATION FOR LEAVE TO APPEAL
VAN
NIEKERK J
[1]
This is an application for leave to appeal against the whole of the
court’s judgment delivered on 16 November 2017. In
its
judgment, the court refused to condone the late filing of an
application to review and set aside an arbitration award issued
by
the second respondent.
[2]
The applicant has applied for condonation for the late filing of this
application. The explanation proffered by the applicant’s
attorney is satisfactory, and condonation is granted.
[3]
The written submissions filed by the applicant in support of the
application for leave to appeal scarcely address the court’s
finding, i.e. that condonation for the later filing of the review
application should be refused. Instead the applicant has sought
to
make out a case primarily on the merits of the review application.
The delay in filing the review application was significant,
if not
inordinate. The explanation for the delay amounted to submissions by
a specialist labour law adviser that the issues raised
in the award
under review were ‘complex’, that further consultations
were necessary prior to filing the review application,
that the
deponent experienced IT related problems, and that he was unaware
that a founding affidavit needed to be attached to a
notice of
motion. All of these explanations were considered in paragraph 6 of
the judgment, and found wanting for the reasons recorded.
The fact
remains that the deponent is a labour law specialist in the employ of
the applicant, who was obviously aware of both the
applicable time
limits and the fact that the application ought to have been attended
to with the required degree of diligence and
urgency. He manifestly
failed to do so. Strictly, in the absence of a satisfactory
explanation for an unacceptable delay, the applicant’s
prospects of success in the review application were not a relevant
factor. However, the court gave consideration to those prospects,
and
concluded, for the reasons recorded, that they were not so
overwhelming so as to justify a failure to file the review
application
timeously. To the extent that the applicant relies in the
present application on the merits of the review application, the same
consideration must apply.
[4]
The granting of condonation is a matter of discretion, and it is
trite that an appeal court will rarely interfere with a discretion
properly exercised.
[5]
In my view, the applicant has failed to make out a case for leave to
appeal and the application stands to be dismissed. There
is no reason
why costs should not follow the result.
I
make the following order:
1.
The application for leave to appeal is
dismissed, with costs.
André
van Niekerk
Judge