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[2019] ZALCJHB 268
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Minister of Defence and Military Veterans v PSA obo Moditswe and Others (JR45/17) [2019] ZALCJHB 268 (10 September 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
CASE
NO: JR45/17
In the matter between:
THE MINISTER OF DEFENCE AND
MILITARY
VETERANS
Applicant
and
PSA obo P.W
MODITSWE
First Respondent
MARTIN SAMBO
N.O
Second
Respondent
GENERAL PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL
Third
Respondent
Judgment
delivered:
10 September 2019
JUDGMENT
VAN
NIEKERK J
[1]
This is an application for leave to appeal against the whole of the
judgment delivered by
this court on 21 May 2019, when the court held
that a review application filed by the applicant was deemed to have
been withdrawn
and made an arbitration award issued by the second
respondent an order of court.
[2]
The importance of filing a record of proceedings sought to be
reviewed within the prescribed
time limit has been highlighted by the
LAC, as have the consequences of a failure to file a record timeously
or seek an extension
of the period within which to do so. All of
these provisions have as their purpose the expeditious resolution of
labour disputes.
The applicant raises nothing in the present
application that was not raised and canvassed in the main
application. In essence,
the applicant now seeks to make out a case
(which was not made in the answering affidavit) that the state
attorney was to blame
for failing to file a complete record, and that
the judgment has ‘detrimental effects’ for the applicant.
The applicant
attached correspondent to the founding affidavit in an
effort to establish that between 9 February 2017 and 10 May 2019, it
made
regular enquiries as to the status of the matter. Two
observations can be made. The first is that it is not open to an
applicant
to make out a case in an application for leave to appeal
that ought properly to have been made in the answering affidavit in
the
main application. Secondly, the fact that there was no meaningful
response to the applicant’s enquiries directed to the state
attorney for a period of more than two years ought to have alerted
the applicant to that fact that the matter was being handled
with a
lack of due diligence.
[3]
In these circumstances, the application for leave to appeal stands to
be dismissed. The
applicant has only itself (and the state attorney)
to blame for its misfortune, and the first respondent should not be
deprived
of the benefit of the award issued in his favour on that
account.
I make the following order:
1.
The application for leave to appeal is
dismissed.
André van Niekerk
Judge