Matjila v Milanzi NO and Others (JR 2130/2020) [2023] ZALCJHB 208 (19 July 2023)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Case No: JR 2130/2020

In the matter between:

In Chambers

MATHOMA

BEATRICE MATJILA Applicant and

ISSAC MILANZI N.O. First Respondent

COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION Second Respondent

SOUTH

AFRICAN REVENUE SERVICES Third Respondent

Delivered: 19 July 2023

(This ruling was handed down electronically by circulation to the parties’ representatives, by email. The date on which the ruling is delivered is deemed to be 19 July 2023.)

RULING: APPLICATION

FOR LEAVE TO APPEAL

VAN NIEKERK, J

[1] The applicant seeks leave to appeal against a judgment delivered by the court on 30 January 2023, when the court dismissed an application to review and set aside an award issued by the first respondent, who had in turn upheld the applicant’s dismissal by the third respondent. The application was to have been filed by no later than 20 February 2023. The application was filed on 21 June 2023, four months late.

[2] The applicant has filed an application for condonation. The founding affidavit is deposed to by her instructing attorney, in circumstances where there is no confirmatory affidavit by the applicant. To the extent that the explanation for the delay is contended to be the consequence of personal circumstances, the evidence proffered is hearsay. The period of delay is significant. The explanation for the delay is one of financial constraints, an averment which, as I have noted, is not supported on affidavit by the applicant herself. The explanation is baldly stated, with no detailed explanation covering the whole period of delay. The prospects of success are supported by two averments; firstly, that the applicant had made out a case for review and secondly, that the arbitrator had erred in his assessment of the evidence.

[3] In view of an inadequate explanation for an excessive delay, condonation stands to be refused without reference to the applicant’s prospects of success. Even were those to be taken into consideration, the applicant has not established that she has prospects of success – her averments amount to no more than a repetition of submissions made and rejected for the reasons given. What the applicant ignores is the stringent nature of the test to be applied on review. Review applications which seek to have awards set aside on the basis of a contention of an irregular assessment by the arbitrator of the evidence are especially susceptible to crossing the line between review and appeal, and the present case is no exception. In so far as prejudice is concerned, the third respondent is entitled to finality.

[4] I make the following order:

1. Condonation for the late filing of the application for leave to appeal is refused.

2. The application is dismissed.

André van Niekerk

Judge of the Labour Court of South Africa