Innovative Staffing Solutions (PTY) Ltd v Minister of Employment and Labour and Others (J668/22) [2022] ZALCJHB 328 (28 November 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: J668/22

In the matter between:

INNOVATIVE STAFFING SOLUTIONS (PTY) LTD

Applicant

and

MINISTER OF EMPLOYMENT AND LABOUR

First Respondent

NATIONAL BARGAINING COUNCIL FOR THE ROAD

FREIGHT AND LOGISTICS INDUSTRY (NBCRFLI)

Second Respondent

ROAD FREIGHT ASSOCIATION (RFA)

Third Respondent

NATIONAL EMPLOYERS’ ASSOCIATION

OF SOUTH AFRICA (NEASA)

Fourth Respondent

CONSOLIDATED EMPLOYERS ORGANISATION (CEO)

Fifth Respondent

SOUTH AFRICAN TRANSPORT AND ALLIED

WORKERS UNION (SATAWU)

Sixth Respondent

MOTOR TRANSPORT WORKERS

UNION OF SOUTH AFRICA (MTWU)

Seventh Respondent

PROFESSIONAL TRANSPORT AND ALLIED

WORKERS UNION (PTAWU)

Eighth Respondent

TRANSPORT AND ALLIED

WORKERS UNION (TAWU)

Ninth Respondent

Heard: 14 July 2022

Delivered: 28 November 2022

(This judgment was handed down electronically by circulation to the parties' legal representatives by email, publication on the Labour Court’s website and released to SAFLII. The date and time for hand-down is deemed to be 10h00 on 28 November 2022.)

LEAVE TO APPEAL - JUDGMENT

NKUTHA-NKONTWANA, J

[1] This is an opposed leave to appeal wherein the applicant seeks leave to appeal the whole judgment and order of this Court handed down on 3 August 2022. Leave is sought to appeal to the Labour Appeal Court (LAC) on several grounds that are enunciated in its notice of the application for leave to appeal.

[2] The application for leave to appeal was filed out of the prescribed time limits as per the Rules of this Court[1] (Rules), and condonation thereof is sought. The second respondent is opposing both the leave to appeal and the granting of condonation.

[3] Rule 30 of the Rules, read with clauses 15.1 and 15.2 of the Practice Manual[2] provides for the timelines on when leave to appeal should be filed. Unfortunately, in this matter, the leave to appeal was filed 33 days late. The delay is excessive and the explanation is unreasonable.

[4] The applicant seems to hide behind its decision to change attorneys for the delay. Well, it is now a trite principle that there is a limit beyond which a litigant cannot be absolved from the normal consequences of an attorney and client relationship in regard to condonation of a failure to comply with the Rules no matter the circumstances of the failure.[3]

[5] On the prospects of success, it would seem that the applicant places reliance on the recent Constitutional Court judgment in United Democratic Movement and Another v Lebashe Investment Group (Pty) Limited and Others[4] (Lebashe) to support its application for leave to appeal against the order refusing to grant the relief sought under Part A; i.e. to stay the extension of the second respondent’s collective agreement pending the review application under Part B. It contends that, on the authority of Lebashe, the impugned order is appealable despite being interim in nature.

[6] Whether an interim order is appealable is not a novel issue and Lebashe is not the first instance where the Constitutional Court pronounced on this issue.[5] In South African Informal Traders Forum and Others v City of Johannesburg and Others; South African National Traders Retail Association v City of Johannesburg and Others[6], the Constitutional Court observed that “…the applicable test is whether hearing the appeal serves the interests of justice. In making this determination, the Court must have regard to and weigh carefully all relevant circumstances. The factors that are relevant, or decisive in a particular instance, will vary from case to case”. While in Lebashe, it was emphasised that:

‘[47] …an interim interdict pending an action is an extraordinary remedy within the discretion of the court. For an order to be said to be interim, it must be susceptible to alteration and capable of being reconsidered at the pending trial on the same facts by the court of first instance...

[48] In granting an interdict, the court must exercise its discretion judicially upon a consideration of all the facts and circumstances. An interdict is "not a remedy for the past invasion of rights: it is concerned with the present and future". The past invasion should be addressed by an action for damages. An interdict is appropriate only when future injury is feared.’[7]

[7] In the present instance, the applicant deliberately confounds the issues pertaining to various litigations it has instituted against the second respondent. The crisp issue, though, pertains to an interim relief to stay the enforcement of the first respondent’s decision pending the review application. I was not convinced that there was impending or imminent irreparable harm threatening the applicant’s right to review justified the interim protection as

the impugned decision has already been taken and implemented.

[8] The threshold for granting leave to appeal in terms of section 17(1)(a)(i) of the Superior Courts Act[8] (SCA) is high. To succeed, a party seeking leave to appeal must show that the appeal ‘would’ have reasonable prospects of success. Put otherwise, it must be show that another court ‘will’, not ‘might’, differ from the court whose judgment is sought to be appealed against.[9] When it comes to labour matters, another pivotal consideration is the imperative that labour disputes must be expeditiously resolved.[10]

[9] Having holistically assessed all the grounds of appeal and weighed carefully the circumstance in this matter, I am not convinced that it would serve the interests of justice to grant leave to appeal against the impugned interim order. The applicant failed to show that the appeal bears reasonable prospects of success. By the same token, the applicant failed to show good cause for the grant of condonation.[11]

[10] It follows that the condonation application stands to be dismissed. However, I disinclined to burden the applicant with costs.

[11] In the circumstances, the condonation application is dismissed with no order as to costs.

P. Nkutha-Nkontwana

Judge of the Labour Court of South Africa

[1] GN 1665 of 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] See: Saloojee and Another NNO v Minister of Community Development 1965 (2) SA 135 (A); Tshivhase Royal Council and another v Tshivhase and another; Tshivhase and another v Tshivhase and another [1992] ZASCA 185; 1992 (4) SA 852 (AD) at 859E-F.

[4] 2022 (12) BCLR 1521 (CC) (Lebashe).

[5] South African Informal Traders Forum and Others v City of Johannesburg and Others; South African National Traders Retail Association v City of Johannesburg and Others 2014 (4) SA 371 (CC).

[6] Id at paras [20].

[7] Lebashe supra n 3 at paras [47] - [48].

[8] Act 10 of 2013.

[9] See: Van Heerden v Cronwright & Others 1985 (2) SA 342 (T) at 343H; Acting National Director of Public Prosecutions & Others v Democratic Alliance in re: Democratic Alliance v Acting National Director of Public Prosecutions & others (19577/09) [2016] ZAGPPHC 489 (24 June 2016) at para [25].

[10] See: Martin and East (Pty) Limited v National Union Mineworkers and Others (2014) 35 ILJ 2399 (LAC).

[11] See: Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 532 C – F; Grootboom v National Prosecuting Authority and another 2014 (2) SA 68 (CC) at paras [22] - [23] and [51].