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[2019] ZALCJHB 131
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Mofokeng and Others v Rotek and Roshcon SOC Ltd and Others (JR264/16) [2019] ZALCJHB 131 (7 June 2019)
THE
LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
Not
Reportable
Case
no: JR264/16
In
the matter between:
ANDRIES
MOFOKENG AND 4 OTHERS
Applicant
and
ROTEK
AND ROSHCON SOC LTD
First Respondent
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION Second
Respondent
JOYCE
NKOPANE
N.O
Third
Respondent
Decided: In
chambers
Delivered:
07 June 2019
JUDGEMENT:
APPLICATION FOR LEAVE TO APPEAL
NKUTHA-NKONTWANA. J
Introduction
[1]
This is an opposed application for leave to
appeal brought by the applicant against the whole judgment and order
handed down by
this Court on 13 December 2018. In that Judgment, I
dismissed the condonation application for the late filing of the
review application
with no order as to costs. The parties are cited
as they are referred to in the judgment.
[2]
There are several grounds for leave to appeal upon which the
application is hinged and I do not intend repeating them in this
judgment,
save to say that I have considered them in deciding this
application. The applicant main impugn is that I applied the wrong
test
in addressing the prospects of success as a relevant fact in
considering the condonation application and applied review test
instead
of the condonation test.
Merits
[3]
In dealing
with the application for condonation, I was guided by the
dictum
in
Melane
v Santam Insurance Co Ltd
[1]
which states:
“
... the basic
principle is that the court has a discretion, to be exercised
judicially upon consideration of all the facts, in essence,
it is a
matter of fairness to both sides. Among the facts usually relevant
are the degree of lateness, the explanation thereof,
the prospects of
success and the importance of the case. Ordinarily these facts
are interrelated: they are not individually
decisive, for that would
be a piecemeal approach incompatible with a true discretion,
save
of course that if there are no prospects of success there will be no
point in granting condonation
. What is needed is an
objective conspectus of all the facts. Thus, a slight delay and
a good explanation may help to
compensate for the prospects of
success which are not strong. The importance of the issue and
strong prospects of success
may tend to compensate for a long delay.
The respondent’s interest in finality must not be overlooked.”
(Emphasis added)
[4]
In this instance, even though I accepted
the explanation for the delay, I went further to consider the
prospects of success
. In doing so, I considered the whole
review application and I was satisfied that the
arbitration
award was unassailable since the applicants failed to show that they
had been dismissed or had a reasonable expectation that their
contracts would be renewed.
[5]
Accordingly, I found the
prospects of
success to be
explicitly deficient and, for that reason,
refused the application for condonation.
Conclusion
[6]
The
test for leave to appeal is trite, the applicant must convince the
court
a
quo
that it has reasonable prospects of success on appeal.
Having
considered all the submissions from the parties, I am not convinced
that there is a reasonable prospect that the factual
matrix in this
case might receive a different treatment at the appeal.
[2]
Put differently, the applicant has failed to make out a case that
another court might reasonably arrive at a decision different
to the
one reached by this Court. The application for leave to appeal
should, therefore, be refused. I am, however, disinclined
to grant an
order as to costs.
[7]
In the circumstances, I make the following order:
Order
1.
The application for leave to appeal is dismissed.
2.
There is no order as to costs.
__________________
P. Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
[1]
1962 (4) SA 531
(A) at 532- E.
[2]
See
Martin
and East (Pty) Limited v National Union Mineworkers and Others
(2014)
35 ILJ 2399 (LAC).