Department of Health and Social Development v Sambo NO and Others (JR958/2014) [2016] ZALCJHB 511 (9 December 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not reportable

Case no: JR 958/2014

In the matter between

DEPT OF HEALTH & SOCIAL DEVELOPMENT

Applicant

and

MARTIN SAMBO N.O First

Respondent

PUBLIC HEALTH AND SOCIAL DEVELOPMENT Second

Respondent

SECTORAL BARGAINING COUNCIL

DINKWETSE JULLIET MOTSOMI Third

Respondent

RULING: APPLICATION FOR LEAVE TO APPEAL

VAN NIEKERK J

[1] This is an application for leave to appeal against the whole of the judgment delivered by this court on 7 September 2016, when the court refused to condone the late filing of a review application. The review application sought to set aside an arbitration award in which the first respondent had held that the applicant had no substantively fair reason to dismiss the third respondent.

[2] The relevant facts are recorded in the judgment that is the subject of the present application, and I do not intend to repeat them here. The review application was filed some 16 weeks later. While the court did not regard the delay as inordinate, the explanation for the delay was unsatisfactory. It related to the preparation of the papers, and disclosed a pattern of litigation at leisure. The explanation was in any event incomplete – there were significant periods of delay that are simply unexplained. Further, the condonation application was filed some 818 days late, without proper explanation. In these circumstances, the court held that given the extent of the delay and the poor explanation for that delay, it was not necessary to consider the applicant’s prospects of success in the main application. That principle was established as long ago as 1998 in National Union of Mineworkers v Council for Mineral Technology [1998] 2 ZALAC 22, 17 August 1998) and affirmed more recently by Musi AJA n Collett v Commission for Conciliation, Mediation and Arbitration [2014] 6 BLLR 523 (LAC), a unanimous judgment of the Labour Appeal Court:

There are overwhelming precedents in this court, the Supreme Court of Appeal and the Constitutional Court for the proposition that where there is a flagrant or gross failure to comply with the rules of court condonation may be refused without considering the prospects of success. In NUM v Council for mineral technology [1999] 3 BLLR 209 (LAC) at para 10, it was pointed out that in considering whether good cause has been shown the well-known approach adopted in Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 532C-D … Should be followed but:

‘There is a further principle which is applied and that is without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without good prospects of success, no matter how good the explanation for delay, an application for condonation should be refused.’

The submission that the court a quo had to consider the prospects of success irrespective of the unsatisfactory and unacceptable

explanation for the gross and flagrant disregard of the rules is without merit.

[3] There is a further consideration that must necessarily be taken into account. In the recent decision by Myburgh AJ in Makuse v CCMA & others (JR 2795/11, unreported, 18 August 2015), the court alluded to measures recently instituted to address systemic delays, particularly in review applications. The practice manual, introduced in April 2013, records that a review application is ‘by its very nature an urgent application’. The practice manual also requires that all of the necessary papers in any review application

be filed within 12 months of the date of the launch of the application. Although in the present instance the practice manual was

not in force at the relevant time, the classification of the review application is one that necessarily requires its prosecution with diligence and urgency remains apposite. As the court observed, the corrective steps taken by this court and the legislature (in the form of the 2014 amendments to the LRA) the statutory imperative that labour disputes must be effectively and thus expeditiously resolved. What this requires is a strict scrutiny of condonation applications and an approach that affords due regard to the statutory purpose of expeditious dispute resolution.

[4] The award under review was issued three years ago. There is no merit in further protracting these proceedings. To the extent that the applicant relies on the nature of the misconduct that it alleges the third respondent to have committed and suggests that the present matter is exceptional, if the applicant had from the outset taken the matter more seriously and avoided delay, the present situation would never have arisen. Any prejudice to the applicant is entirely self-created.

[5] In my view, there is no prospect that another court would come to a different conclusion. The application for leave to appeal stands to be dismissed.

I make the following order:

1. Leave to appeal is refused.

ANDRE VAN NIEKERK

JUDGE OF THE LABOUR COURT

Chambers

9 December 2016