Maloisane v Judge President of the Labour Court and Others (J 2024/19) [2022] ZALCJHB 331 (25 November 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: J 2024/19

In the matter between:

MARIE MALOISANE

Applicant

And

JUDGE PRESIDENT OF THE LABOUR COURT

First Respondent

REGISTRAR OF THE LABOUR COURT

Second Respondent

FOURIE’S POULTRY FARM (PTY)

Third Respondent

t/a CHUBBY CHICK

Decided: In Chambers

Judgment: 25 November 2022

JUDGMENT: APPLICATION FOR LEAVE TO APPEAL

MAMABOLO, AJ

Introduction

[1] This is an application for leave to appeal against the whole judgment of this court which was handed down on 11 August 2022.

[2] Rule 30 (2) provides that “ If leave to appeal has not been made at the time of judgment or order, an application for leave to appeal must be made and

the grounds for leave furnished within 15 days of the date of the judgment or order against which leave to appeal is sought, except

that the court may, on good cause shown, extend that period”.

[3] Clause 15.2 of the Practice Manual provides that “ within 10 days of the filing of the application for leave to appeal, the party seeking leave must file its submissions in terms of Rule 30 (3A) and the party opposing the leave must file its submissions five days thereafter. An application for leave to appeal will be decided by the judge in chambers on the basis of the submissions filed in terms of Rule 30 (3A), unless the judge directs that the application be heard in open court”.

[4] The Applicant in this matter filed an application for leave to appeal on 24 August 2022. A copy of the application had not been served on the Third Respondent.

[5] The above omission was brought to the attention of the Applicant who was adamant that the Rules do not provide for such service on the Third Respondent.

[6] Rule 7(1) provides that an application must be brought on notice to all persons who have an interest in the matter. “Brought on notice to all persons who have an interest in the matter,” essentially entails that a copy of the notice application for leave to appeal must be served on all parties directly affected by the application for leave to appeal.

[7] The above is further supported by clause 15.2 of the Practice Manual which requires the opposing party to file written submissions within 5 days of the receipt of the Applicant’s submissions.

[8] It is therefore a requirement that an application for leave to appeal be served on the Third Respondent within the period prescribed in Rule 30 (2). Absence service of a notice of appeal on the Third Respondent, Third Respondent would not be aware of the pending application for leave to appeal and would not file its opposing papers as is required by clause 15.2.

[9] As stated above, a copy of the application has not been served on the Third Respondent which renders the application defective.

[10] Further to the above and as required by clause 15.2 of the Practice Manual, the Applicant has failed to file his submissions within 10 days of the filing of the application. This statement is mentioned purely as an aside and should not be construed to imply that the application would have been entertained had such submissions being filed.

[11] Having stated the above, I find that the Applicant’s application for leave to appeal is fatally defective. This being the case, there is no application for leave to appeal before the court.

[12] Consequently, the Applicant’s right to seek leave to appeal has lapsed.

[13] In the premise I make the following order:

1. The application for leave to appeal is dismissed.

2. There is no order as to costs.

N.O. Mamabolo

Acting Judge of the Labour Court of South Africa