Bacela v MEC, Responsible for Education, Eastern Cape and Others (P113/10) [2021] ZALCPE 1 (30 April 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH

Not Reportable

CASE NO: P113/10

In the matter between:

MTHOMASEBE

CLEMENT BACELA

Applicant

and

MEMBER

OF THE EXECUTIVE COUNCIL

RESPONSIBLE FOR EDUCATION, EASTERN CAPE First Respondent

J E BAX, ARBITRATOR,

INDEPENDENT MEDIATION SERVICES,

SOUTH

AFRICA Second Respondent

PRINCIPAL,

MASIBULELE PUBLIC SCHOOL

EAST

LONDON Third Respondent

THE CHAIRMAN, SCHOOL GOVERNING BODY OF

MASIBULELE PUBLIC SCHOOL, EAST LONDON Fourth Respondent

THE CHIEF COMMISSIONER,

COMMISSION FOR CONCILIATION,

MEDIATION

AND ARBITRATION Fifth Respondent

Decided: In Chambers Judgment:

30 April 2021

JUDGMENT:

LEAVE TO APPEAL

LALLIE, J

[1] The applicant seeks leave to appeal against the whole of the judgment of this court which was handed down on 11 January 2021. The application is opposed by the first respondent. The application was filed within the prescribed period. The applicant, however, filed an application for condonation of the late filing of his submissions. The condonation is based on the delay which resulted from the need to have the ex tempore reasons for the judgment transcribed. The condonation application is unopposed. The applicant acted prudently in waiting for the transcript as his legal team need it in taking an informed decision on whether to bring this application and to craft the grounds for this application. Further, the delay in filing the submissions was not excessive. The applicant, therefore, established good cause to have the delay excused.

[2] The applicant submitted, correctly, that the test for leave to appeal is whether he has reasonable prospects of success on appeal. What has to be considered, therefore, is whether he has shown the reasonable prospects of his success on appeal.

[3] The applicant relied on a number of grounds in this application. The first is that I erred in dismissing the application for reinstatement of his condonation application which was struck from the roll on 17 April 2015 as well as the condonation application itself. The first respondent denied that I erred in dismissing the application as the dismissal resulted from the correct application of the correct legal principles which govern reinstatement of review applications.

[4] In the application whose judgment forms the subject of the application at hand the applicant sought, inter alia, the following relief:

‘1. That the file be retrieved form the archives of the above Honourable Court.

2. That the matter be reinstated into the roll of matters to be heard by the above Honourable Court.’

[5] The first decision which had to be taken was whether the applicant had shown good cause to have his file retrieved from the archives. As the first respondent correctly pointed out, I made it clear in the reasons for judgment that the application was akin to a condonation application. Having considered the submissions before me and applied the relevant test, I concluded that the applicant had failed to show good cause to have his file retrieved for the archives and dismissed his application.

[6] The second and third grounds for leave to appeal were that I erred in considering and dismissing a review application that was not before me. The applicant submitted that the order denied him access to justice because it prevented him from instituting a fresh condonation application which complied with the strict requirements of a condonation application. Opposing the grounds for leave to appeal the first respondent submitted that the applicant loses sight of the fact that the first prayer which he sought was the retrieval of his file from the archives. He argued that any condonation and review applications followed as a natural consequence of the refusal of the application to retrieve the applicant’s file from the archives. The applicant did not succeed in proving that the review application was considered. Nothing precluded me form considering information relevant to the determination of the application before me. Its relevance to the review application did not constitute a consideration of the review application. The applicant further failed to substantiate his submission that I rescinded, mero motu, a directive of 3 August 2010 directing him to file an answering affidavit in respect of the condonation application within 15 days of the directive.

[7] The application submitted that I erred in finding that there was still a need for the award of the second respondent to be reviewed and set aside as the first respondent has conceded that the applicant was reinstated in his position as an educator during 2006. He alleged that the award became a nullity. He added that I erred in applying a restrictive approach and relying on the test for condonation when he was required to and successfully explained his failure to be in court on 17 April 2015. The first respondent, submitted, that the grounds the applicant sought to rely on are contradictory. He concedes that he was reinstated in 2006 yet he still seeks, in the review application he filed in 2010, an order reviewing and setting the arbitration award aside and a further order placing him in the position he would have been in had he not been discharged form service. These submissions are inconsistent with his allegation that the award that is the subject of his review application has been nullified.

[8] The applicant’s grounds for leave to appeal based on his prospects of success have no legal basis as he missed the opportunity to address the issue in the reinstatement application. The applicant’s submission that I erred in dealing with the 2013 condonation application is inconsistent with the reasons for the judgment he seeks leave to appeal against in which I stated that the condonation application was not before me. The condonation application was therefore not dealt with.

[9] All the grounds and submissions which the applicant sought to rely on in this application were successfully refuted by the applicant. He was therefore left without valid grounds on which the conclusion that he has reasonable prospects of success can be based. His application can, in the circumstances not succeed. Although the first respondent sought the dismissal of this application with costs, he did not furnish reasons which justified the costs order. The order may, in the absence of the reasons, not be granted.

[10] In the premises, the following order is made:

Order:

1. The late filing of the applicant’s submissions is condoned.

2. The application for leave to appeal is dismissed.

3. There is no order as to costs.

Z. Lallie

Judge of the Labour Court of South Africa