MEC for Economic Development, Environment and Tourism v Mokgahlane (J2907/2013) [2016] ZALCJHB 165 (25 April 2016)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case no: J 2907/2013

In the matter between:

MEC FOR ECONOMIC DEVELOPMENT,

ENVIRONMENT AND TOURISM

Applicant

and

MADIMETJA ABRAM MOKGAHLANE

Respondent

Heard: In Chambers

Delivered: 25 April 2016

JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL

BANK, AJ

[1] This is an application in which the applicant (“the MEC”) applies for permission to appeal my judgment of 25 November 2015 in which I dismissed the MEC’s application for condonation and which had the effect of disposing of the MEC’s review application in terms of section 158(1)(h) of the Labour Relations Act, 1995 (“the LRA”).

[2] At the outset, I note that the application for leave to appeal is itself late, having been filed on 19 February 2016 whereas my judgment was delivered on 25 November 2015. Rule 30(2) of the Rules of this Court provide that where an application for leave to appeal has not been made at the time of judgment or order, such application for leave ‘…must be made and the grounds for appeal 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] Taking into account the public holiday on 16 December 2015, the 15-day period in this case would have elapsed on 17 December 2015. The application for leave to appeal was delivered some nine weeks after that. I, therefore, must consider whether there are proper grounds for extending this period. There can be no doubt that this is a substantial period of delay and as such, the reasons for delay must be fully explained in order for the MEC to satisfy me that good cause has indeed been shown for that period of time to be extended.

[4] In support of that application is an affidavit filed by one Luyanda Kopman, (“Kopman”), who describes himself as a senior State Attorney based at the State Attorney’s Pretoria office. He explains that although my judgment was handed down on 25 November 2015, no notice of set down was ever received by the MEC nor was a copy of the judgment transmitted to its offices. In fact, the judgment was only brought to the attention of the MEC on 12 February 2016 when the respondent in the matter arrived at the MEC’s human resources offices demanding implementation of the judgment. A copy of the judgment was then provided to the deponent on 15 February 2016 and the present application made several days thereafter and filed in court on 19 February 2016. For its part, the respondent does not appear to take any issue with the lateness of filing of this application for leave to appeal and I am therefore satisfied that the delay in bringing such application has been properly explained by the deponent. For these reasons, I am prepared to condone the late filing of the application for leave to appeal and the time period for filing is accordingly extended to the extent necessary.

[5] I then turn to deal with the merits of the application for leave to appeal, pausing to state that I have read, analysed and considered the written submissions filed by both sides. I have also reconsidered my judgment and the reasons that I gave for such judgment. For the reasons set out below, I am not inclined to grant permission to appeal my judgment as I am of the view that there is very little chance of another court coming to a different decision.

[6] The main argument appears to be that there was no need for a formal condonation application as there are no prescribed time limits for a review under section 158(1)(h) of the LRA as read with the Labour Court Rules. It is further contended that I failed to consider the principle that such applications must be launched without “undue delay” as underpinned by section 237 of the Constitution and that I, moreover, failed to consider the potential harm arising from this. It is also submitted, on the merits of the matter, that I made several errors relating to the selection process of the respondent and, generally, by my failure to find that there was a material contravention of the Public Service Regulations, 2001 in the manner in which the MEC had approved the respondent’s recommendation for the post in question.

[7] Although it is beyond any dispute that there is no set time limit for such a review, it is undeniable that such review must be launched within a reasonable time [NM1] and that the starting point for the analysis of how long a “reasonable time” is said to be is the period of approximately six weeks. It is also beyond dispute that a legality review such as the present must be initiated without “undue delay” and that it was well within the discretion of the Court to either overlook a delay or to refuse to entertain a review application that is brought after an undue delay in initiating such proceedings.

[8] As is correctly pointed out in the written submissions advanced on behalf of the respondent, the MEC could easily have explained the delay in launching the main review application by filing a supplementary or replying affidavit. Instead, the MEC elected to make a substantive application for condonation. I fail to see how I could not, therefore, have been entitled to give due regard to the contents of this application when determining whether to condone the delay (and thus consider the review on its own merits) or to refuse condonation (on the grounds that the MEC had failed to provide a sufficient explanation for its delay). The respondent is correct in arguing that, in the absence of any reasonable explanation for such delay, the delay must be held to be unreasonable.

[9] In this matter, there was a six-month delay in launching the main review application calculated from the date that the appointment sought to be set aside had been made. I analysed the explanation provided for the delay in launching the review application which, in short, was that the MEC had no choice but to await the outcome of an opposed court application in which judgment was only delivered on 19 June 2014 before launching the present review and the requisite guidance had been received. I stated that I was not persuaded by this explanation and that it was well-nigh conceivable, if not probable, that there could have been an appeal process in this opposed application which found its way to the Labour Appeal Court (and even beyond) which would have delayed the matter further. I found this explanation to be unreasonable and unsatisfactory. I also found the six-month delay in launching the review excessive in the circumstances.

[10] Having reviewed the reasons provided in my judgment, I am unpersuaded that the MEC provided satisfactory explanation for his delay in launching the review application and also found that the explanation was itself “highly unsatisfactory”.[NM2] Moreover, there were periods of inaction that were simply left unexplained. It bears repeating that the application for condonation was itself launched some six months after the MEC’s failure to apply for condonation had been pointed out in the respondent’s answering affidavit of February 2014. It is trite that such applications must be made timeously and at the earliest opportunity.

[11] I do not envisage that there are prospects of another court finding that I erred in coming to this conclusion. As there is slim prospect of another court coming to a different conclusion on the explanation for the excessive delay, there is no point in discussing further the grounds of review provided as I have already expressed my views that the grounds of review have no real prospects of success.

[12] For the avoidance of any doubt, I point out that I did indeed have due regard to the elements of prejudice to both parties and the consequences of my judgment finding that the respondent was entitled to be reinstated in his position with retrospective effect. I am, therefore, satisfied that I have correctly applied the rules and principles relating to condonation and also to applications for leave to appeal such as the present and I, therefore, cannot agree that there is any reasonable prospect that another court will come to a conclusion different to that in my judgment. Litigants sometimes fail to remember that one of the chief purposes of the LRA is to promote the effective resolution of labour disputes. This purpose will not be served by permitting the MEC to appeal my judgment. This litigation ought to be brought to a conclusion at this juncture.

[13] For these reasons, I find that there is no merit in the application before me and leave to appeal is, therefore, refused with costs.

[14] I, therefore, make the following order:

1. The application for condonation for the late filing of the application for leave to appeal is granted;

2. The application for leave to appeal my judgment of 25 November 2015 in this matter is dismissed;

3. The applicant (the MEC) for leave to appeal is to pay the costs.

________________

Bank, AJ

Acting Judge of the Labour Court of South Africa

[NM1]Kindly consider if this is correct, considering that reviews in terms of the Act are supposed to be launched within six weeks.

[NM2]Please reconsider