Bulk Machine Hire v Commission For Conciliation Mediation and Arbitration and Others (JR600/18) [2024] ZALCJHB 275 (23 July 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR600/18

In the matter between:

BULK MACHINE HIRE

Applicant

and

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION

First Respondent

COMMISSIONER MGAELE ALFRED

MASHIGOANA N.O

Second Respondent

AMCU obo AMOS MABESA

Third Respondent

Heard: In Chambers

Delivered: 23 July 2023 (This judgment was handed down electronically by emailing a copy to the parties. 23 July 2024 is deemed to be the date of delivery of this judgment).

Summary: Leave to appeal – application late without condonation application and no proper grounds for appeal made out –

application for leave to appeal dismissed.

JUDGMENT: LEAVE TO APPEAL

STEENKAMP, AJ

Introduction

[1] The applicant in the main application brought an application for the review and setting aside of an arbitration award dated 15 February 2018, issued by the Second Respondent in terms of which it was found that the dismissal of the individual employee, Mr Amos Mabesa, was both procedurally and substantively unfair.

[2] The application came before me on 11 January 2024 for argument, and I delivered a written judgment on 26 February 2024. I dismissed the application for review, and I made no order as to costs.

[3] On or about 24 April 2024, the applicant filed an application for leave to appeal incorporating its written submissions in terms of Rule 30(3A) of the Labour Court Rules[1] read with Clause 15.2 of the Practice Manual[2].

[4] The Third Respondent union filed its written submissions opposing leave to appeal on or about 17 May 2024.

[5] Clause 15.2 of the Practice Manual provides that an application for leave to appeal will be determined by a Judge in chambers, unless the Judge directs otherwise. I see no reason to direct otherwise and will accordingly determine the applicant’s application for leave to appeal in chambers.

Litigation History

[6] A brief exposition of the history and timelines of litigation is necessary in the current instance and has a direct bearing on the determination of the application for leave to appeal.

[7] Mr Mabesa, the Third Respondent employee, was dismissed for misconduct by the Applicant effective 6 November 2017. The Second Respondent found that the dismissal of the Third Respondent employee was procedurally and substantively unfair, and ordered the Applicant to reinstate him.

[8] The Applicant launched the application to review and set aside the award as aforesaid on 6 April 2018, 4 days out of time.

[9] The Applicant did not formulate the relief it sought to include a prayer for condonation, but this issue was, on my direction, rectified on the date of hearing, and I granted condonation.

[10] The record of proceedings initially filed by the First Respondent was incomplete. It later became apparent that the audio recordings were lost.

[11] The Applicant did not comply with the prescripts of the Practice Manual regarding lost records. To be clear, they did not seek an indulgence in respect of an extension of time from the Third Respondent, nor did they seek a directive from the Judge President as prescribed in Clause 11.2.4 of the Practice Manual.

[12] They eventually had the matter set down for a reconstruction hearing, but this only took place on 19 October 2018, the transcript thereof was completed on 7 December 2018 and it was filed with this Court on 14 December 2018.

[13] Between the time the initial record was delivered to this Court and the filing of the transcript, roughly 8 months had elapsed.

[14] The 60-day period within which the record ought to have been filed, counted from delivery of the Rule 7A(3) notice, lapsed on or about 11 July 2018.

[15] The transcript was accordingly filed some 5 months late, and the provisions of paragraph 11.2.3 were triggered.

[16] This lateness too was not sought to be condoned, and in fact, if I had strictly applied the prescripts of the Practice Manual, I ought to have refused to hear the matter, as the review was deemed to have been withdrawn, and it has not been reinstated.[3]

[17] Be that as it may, the Court took a pragmatic approach, and proceeded to hear the matter in order for matters to be finalised. Judgment was reserved, and handed down on 26 February 2024, as already stated hereinabove.

[18] Rule 30(2) of the Labour Court Rules (Rules) stipulates that an application for leave to appeal must be made within 15 days from the date of the judgment or order against which leave to appeal is sought.

[19] The dies within which to launch an application for leave to appeal lapsed on 18 March 2024.

[20] The Applicant filed its application for leave to appeal on 22 April 2024, some 22 days after the dies within which to file the application lapsed.

[21] The application for leave to appeal, despite being launched out of time, was not accompanied by an application for condonation.

[22] The application for leave to appeal is opposed by the Third Respondent.

Analysis

[23] Rule 7 of the Labour Court Rules[4] deals with applications. An application, such as an application for condonation, must consist of a notice of motion, supported by an affidavit, both of which must contain certain information. There is simply no application for condonation on any construction of the papers before me.

[24] Condonation is not there for the asking. Non-compliance with the rules necessitates an application for condonation, wherein the party’s non-compliance must be sought to be excused, and it will only be granted if the requirements for condonation are met.

[25] It is not unreasonable to expect a party who is seeking an indulgence, to be meticulous in its attempts to convince the Court to grant the indulgence. The Applicant approaches this Court on leave to appeal, out of time, without any application for condonation for the lateness.

[26] Parties are not at liberty to conduct litigation at their leisure and certainly not in the manner that has prevailed in casu.

[27] In view of the lateness of the application for leave to appeal, without any application for condonation, the application for leave to appeal is not properly before this Court and the relief sought is therefore denied.

Conclusion and costs

[28] The only remaining issue is the issue of costs.

[29] In casu, there are insufficient reasons to depart from the principles laid down in Zungu v Premier of the Province of Kwa-Zulu-Natal and Others[5], and consequently, I will not award any costs in the matter.

[30] In the premises, I make the following order:

Order

1.The application is dismissed.

2.There is no order as to costs.

L Steenkamp

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

Mr D Berry

Instructed by:

Guardian Employers Organisation

For the Respondent: Advocate A L Cook

Instructed by:

LDA Incorporated

[1] GN 1665 of 14 October 1996: Rules for the conduct of proceedings in the Labour Court.

[2] Practice Manual of the Labour Court of South Africa, effective 1 April 2013.

[3] At paras 15 – 16 of the judgment.

[4] At the time the application for leave to appeal was launched, the Labour Court Rules, 1995 were still of force and effect, and those rules are referred to in this judgment.

[5] (2018) 39 ILJ 523 (CC); [2018] 4 BLLR 323 (CC) at paras 23 – 26.