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[2019] ZALCPE 20
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Fikile and Others v Minister of Roads and Transport and Others (PR110/14) [2019] ZALCPE 20 (30 October 2019)
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not reportable
Case
no: pr 110/14
In
the matter between:
JE
FIKILE
AND
16 OTHERS
and
MINISTER
OF ROADS AND TRANSPORT
MEC
FOR THE DEPT OF ROADS AND
TRANSPORT,
EASTERN CAPE
GPSSBC
PI
DHLODHLO
N.O
Applicants
First
Respondent
Second
Respondent
Third
Respondent
Fourth
Respondent
RULING: APPLICATION
FOR LEAVE TO APPEAL
Delivered:
30 October 2019
VAN
NIEKERK J
[1]
The applicants seek leave to appeal against the whole of the judgment
by this court
on 23 August 2019. On that date, the court refused to
condone the late filing of an application for review, and dismissed
that
application.
[2]
The material facts are recorded in the judgment and do not bear
repetition. It is
sufficient to say, for present purposes, that the
award sought to be reviewed was issued on 23 September 2013, and
received on
10 November 2014. The review application was filed on 30
July 2014, more than seven months late. The court held that the delay
was excessive, and the explanation for it unsatisfactory, especially
since there was simply no explanation for a period of delay
of some
three months after legal representatives had been consulted. More
broadly, the events giving rise to the dispute occurred
in 1996, and
the court held that the interests of finality trumped.
[3]
The core of the present application is the submission that the court
erred in failing
to consider that the mere fact that the dispute had
its origins in event sthat occired in 1996 was irrelevant to the
delay in either
the reference to arbitration in 2013 or its being set
down for adjudication in 2019. Put another way, the applicants submit
that
the court erred in regarding the commencement of the proiod of
delay at 1996.
[//]
The fact remains that the review application was filed more than
seven months late.
Which by any account is an excessive if not
inordinate delay. The applicant do not dispute that a significant
period of that delay
is simply unexplained. Structlt, as the court
pointed out, in these corcuimstanves the applicanmts’ prosepcts
of success
are irrelevant. To the extent that the applicants rely on
the directive issued by Prinsloo J on 17 May 2017, this
directive
relates only to the filing of a Rule 7A(8) notice and
answering and replying affidavits, and does not address the issue of
condonation,
or suggest that condonation has been granted. The
answering affidavit squarely raises the submission that the court
lacked jurisdiction
to entertain the review application in the
absence of condonation for the late filing of the review application.
The court was
obliged to deal with the jurisdictional issue –
courts may not entertain disputes over which they have no
jurisdiction. This
required the court to determine whether the
applicants had made out a proper case for condonation. After
examining all of the relevant
facts and circumstances relating to the
applicants’’ conduct between the date of receipt of the
award and the filing
of the review application, in the exercise of
its discretion, the court concluded that the applicants had failed to
make out a
case for condition. The reference to events outside of
that time period (and in particular to the fact that the dispute had
its
roots in events as far back as 1996) was made under the rubric of
the interests of finality. In the exercise of a discretion to
grant
or refuse condonation, a court must necessarily have regard to the
interests of justice, the interests of expeditious dispute
resolution
and the interests of finality. What the court found is that none of
these interests, properly considered, outweighed
a poor explanation
for an inordinate delay in filing the review application. In my view,
there is no reasonable prospect that another
court would come to a
different conclusion.
[//]
Finally, there is no reason to deny the first and second respondents
the costs of
opposing the present application.
I
make the following order:
1.
Leave to appeal is refused, with costs.
Andre
van Niekerk
Judge