Lodewyckx v Commission for Conciliation, Mediation and Arbitration and Others (JR2577/09) [2016] ZALCJHB 232 (17 May 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case no: JR 2577/09

In the matter between:

E LODEWYCKX

Applicant

and

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION

First

Respondent

ANSIE SWANEPOEL N.O

Second Respondent

VAAL UNIVERSITY OF TECHNOLOGY

Third Respondent

Date of Ruling: 17 May 2016 (in chambers)

RULING: LEAVE TO APPEAL

CELE J

[1] This than application in which the applicant seeks leave to appeal to the Labour Appeal Court against the whole of my ex-tempore judgment and order handed down by this court on 22 November 2012. The application is some 2 months late. The applicant seeks

condonation for the late filing of the application for leave to appeal. The condonation application was only delivered on 23 July 2013, some 5 months after the application for leave to appeal was filed

[2] I deal first with the application for condonation. The principles applicable in condonation applications are established in Melane v Santam Insurance Co Ltd 1962 (4) SA 531(A). These are the period of the delay, the explanation proffered for the delay, the applicant’s prospects of success in the main application and the respective prejudice that would be caused to the parties should condonation be granted. This court is also guided by judgments of the Constitutional Court. In Grootboom v National Prosecuting Authority 2014 (2) SA 68 (CC). The court reminded practitioners and litigants that the rules and court directions serve a necessary purpose. Bosiel AJ concluded:

‘One gets the impression that we have reached a stage where litigants and lawyers disregard the Rules and directions issued by the court with monotonous regularity. In many instances very flimsy explanations are proffered. In others there is no explanation at all. The prejudice to the court is self-evident. A message must be sent to litigants that Rules and the court’s directions cannot be disregarded with impunity.”

[3] The ex-tempore judgment was handed down on 22 November 2012. The applicant and her representatives were present in court when the judgment was read into the record. The applicant and her representative became fully acquainted with the order made and the reasons for that order on 22 November 2012. Rule 30(2) provides that an application for leave to appeal must be delivered within 15 days of the date of the judgment. The dies expired on 13 December 2013. The applicant only filed her application for leave to appeal on 26 February 2013 -almost 2 months late- and application for condonation on 23 July 2013, about 5 months after the application for leave to appeal was filed. The delay

in delivering the application for leave to appeal, on the other hand is significant, it is more than double the period of 15 days provided for in the rules. Given the significant delay, the court has to examine the explanation therefore.

[4] The applicant blithely states in her submissions that she was not aware that the reasons given by the Judge constituted an ex-tempore judgment was having a status of a judgment. Even if I were to accept the applicant’s statement, the timelines for filing the application for leave to appeal begins to run when the order or judgment is given, not when written reasons are furnished. In Food and Allied Workers Union v Foodtown Incorporated (Pty) Ltd (2000) 21 ILJ 1782 (LC) Brassie AJ said the following:

‘In my view, the time begins to run from the moment that the oral judgment is gives. The fact that the prospective appellants have no writing with which to work is a factor that can be properly be taken into account either on considering whether it is permissible for the appellants to amend their notice of application for leave to appeal, or insofar as a subsequent application, such as this one for condonation, is brought. As I say, the operative date appears to me to be the date when the oral reason are given.’

[5] The applicant was represented by attorneys throughout, and a Counsel at some stage, one would expect them to be well aware of the rules of this court. Their failure to adhere to this rules, without a proper explanation, is simply inexcusable. It amounts to no reason at all. The applicant filed her submissions on 12 March 2013. In these submissions, though aware, she chose to ignore the fact that the application for leave to appeal was late and indicated that ‘she was advised by her attorney that the application for leave to appeal was in probability late but that he would address same if raised by the third respondent in its submissions’. It was only the third respondent who raised the issue of lateness in its submissions filed on 27 March 2013. The point taken was to the effect that the leave to appeal application was late and there was no application for condonation. The order sought by the third respondent was that this court should dismiss this application with costs. Even if one was to assume that the applicant or her attorney knew nothing about the rules of this court, the third respondent’s attorney notified them in their submissions that the application for leave to appeal was late. It took the applicant about 5 months to file the application for condonation. It was incumbent on the applicant to lodge this application immediately it was made aware of the non-compliance with the rules. See Lumka and Associates v Maqubela (2004) 25 ILJ 2326 (LAC).

[5] The applicant failed to account for the period between 27 March 2013 and 15 May 2013. ZThe applicant’s explanation for the delay is wholly unsatisfactory. In absence of a satisfactory explanation for an unreasonable period of delay, it is not necessary to consider the prospects of success and condonation should be refused. (See NUM v Council for Mineral Technology [1993] 3 BLLR 209 (LAC). I shall nevertheless take the applicant prospects of success into consideration.

[6] The test applicable to applications for leave to appeal is whether there are reasonable prospects that another court , in this case the Labour Appeal Court, may come to a different conclusion to that reached in the judgment that is sought to be taken on appeal.

[7] Section 17 (1) of the Superior Courts Act, 10 of 2013 provides the following:

Leave to appeal may only be given where the judge or judges concerned are of the opinion that –

(a) (i) the appeal would have a reasonable prospect of success; or

(ii) there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration;

(b) the decision sought on appeal does not fall within the ambit of section 16 (2) (a); and

(c) where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties.

[8] The applicant relied on the rumors and utterances of the people who were telling her that she has been appointed. Those people did not have the power or the authority to give effect to any appointment and it is ludicrous to think that a rumour can crystalize into an appointment. It remains an undisputed fact that the powers to issue her appointment resided with the senate. The applicant conceded, in her submissions, that she was never appointed by the senate. In its judgment the court dealt with those conclusions reached by the commissioner and I do no not intend to repeat them in this ruling, the commissioner reached a conclusion that no reasonable decision maker could reach. In my view, there is no prospect that another court would come to a different conclusion.

[9] I make the following order,

9.1. The application to condone the late filing of the application for leave to appeal is dismissed.

9.2. The application for leave to appeal is refused, with costs.

____________________________

JUDGE OF THE LABOUR COURT