Ditsoane v ACWA Power Africa Holdings (Pty) Ltd (JS 259/2017) [2022] ZALCJHB 345 (7 December 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JS 259/2017

In the matter between:

SEIPATI JOYCE DITSOANE Applicant

And

ACWA POWER AFRICA HOLDINGS (PTY) LTD Respondent

Delivered: 07 December 2022

(This judgment was handed down electronically by circulation to the parties’ representatives, by email. The date on which the judgment is delivered is deemed to be 07 December 2022.)

RULING: APPLICATION FOR LEAVE TO APPEAL

VAN NIEKERK, J

[1] The applicant applies for leave to appeal against the whole of the judgment delivered by this court on 24 October 2022.

[2] The test for leave to appeal is established by section 17 of the Superior Courts Act. The court must determine whether there is a reasonable prospect that another court would come to a different conclusion; more precisely, whether there is a reasonable prospect that the factual matrix would receive a different treatment or where there is some legitimate dispute on the law (see Martin & East (Pty) Ltd v NUM (2014) 35 ILJ 2399 (LAC)). In the same matter, Davis JA urged labour courts to take care to ensure a balance between expeditious dispute resolution and the rights of the party seeking leave to appeal.

[3] The applicant sought to set aside a notice of withdrawal, in an application that was dismissed by the court. The applicant submits that the court erred in finding that the applicant had a reasonable explanation for the delay and that she should therefore have succeeded.

[4] What the court considered to be a reasonable explanation was the applicant’s contention that she had expected her erstwhile attorney to withdraw as attorney of record, and not to withdraw her claim. What the applicant was required to do after she came to this realisation, is establish that there is good cause to reinstate her statement of claim. The applicant was required in terms of the court order granted on 3 November 2017 to file an affidavit within 10 days explaining why the statement of case ought to be revived failing which the statement of case will remain withdrawn in its entirety. She failed to comply with that order, and filed the application to set aside the notice of withdrawal only on 24 January 2018. The court recorded in paragraph 9 of the judgment that the applicant had been dismissed some six years ago, and that her dispute had not progressed beyond the referral of what she acknowledges is a defective statement of claim, an exception to that pleading and an application to condone the late referral of the dispute, all of which remains to be determined. The court dismissed the application to set aside the notice of withdrawal after a consideration of all of these circumstances, and in particular, the prejudice that would be caused to the respondent by the applicant’s failure to prosecute her claim with due diligence. In my view, particularly given the reluctance of an appeal court to interfere with the exercise of a discretion, there is no reasonable prospect that another court would come to a different conclusion.

Order

1. The application for leave to appeal is dismissed.

André van Niekerk

Judge of the Labour Court of South Africa