Minister of Defence and Military Veterans v PSA obo Moditswe and Others (JR45/17) [2019] ZALCJHB 268 (10 September 2019)
The court held that the applicant failed to file the record of proceedings within the prescribed time limit and did not seek an extension. The applicant's attempt to introduce new arguments in the leave to appeal application was impermissible. The lack of response from the state attorney over two years should have...
Source-derived case information.
- Citation
- [2019] ZALCJHB 268
- Parties
- Applicant: Minister of Defence and Military Veterans; Respondent: PSA obo P.W Moditswe; Respondent: Martin Sambo N.O; Respondent: General Public Service Sectoral Bargaining Council
- Court
- Labour Court Johannesburg
- Jurisdiction
- South Africa
- Case Number
- JR45/17
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal Following Dismissal of Review Application
- Outcome
- Application for leave to appeal dismissed.
- Judges
- Van Niekerk
- Legal Topics
- Review Application Withdrawal, Filing of Record, Leave to Appeal, Arbitration Award Enforcement
Source-derived case record
Summary, issues, holding and outcome
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Parties
Minister of Defence and Military Veterans
Applicant
PSA obo P.W Moditswe
Respondent
Martin Sambo N.O
Respondent
General Public Service Sectoral Bargaining Council
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Review Application
Legal Issues
- 1 Whether the applicant has established grounds for leave to appeal against the judgment deeming the review application withdrawn.
- 2 Whether the applicant can rely on new arguments not raised in the main application.
- 3 Whether the applicant's failure to file the record timeously can be excused due to the conduct of the state attorney.
Ratio Decidendi
The court held that the applicant failed to file the record of proceedings within the prescribed time limit and did not seek an extension. The applicant's attempt to introduce new arguments in the leave to appeal application was impermissible. The lack of response from the state attorney over two years should have alerted the applicant to the mishandling of the matter. The applicant is responsible for its own misfortune, and the respondent should not be deprived of the benefit of the arbitration award. Accordingly, the application for leave to appeal was dismissed.
Court Disposition
Application for leave to appeal dismissed.
Orders
- The application for leave to appeal is dismissed.
Full Case Text
Judgment text and source record
27 paragraphs
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
CASE NO: JR45/17
In the matter between:
THE MINISTER OF DEFENCE AND MILITARY
VETERANS
Applicant
and
PSA obo P.W MODITSWE
First Respondent
MARTIN SAMBO N.O
Second
Respondent
GENERAL PUBLIC SERVICE SECTORAL
BARGAINING COUNCIL
Third Respondent
Judgment delivered: 10 September 2019
VAN NIEKERK J
[1] This is an application for leave to appeal against the whole of the judgment delivered by this court on 21 May 2019, when the court held that a review application filed by the applicant was deemed to have been withdrawn and made an arbitration award issued by the second respondent an order of court.
[2] The importance of filing a record of proceedings sought to be reviewed within the prescribed time limit has been highlighted by the LAC, as have the consequences of a failure to file a record timeously or seek an extension of the period within which to do so. All of these provisions have as their purpose the expeditious resolution of labour disputes. The applicant raises nothing in the present application that was not raised and canvassed in the main application. In essence, the applicant now seeks to make out a case (which was not made in the answering affidavit) that the state attorney was to blame for failing to file a complete record, and that the judgment has ‘detrimental effects’ for the applicant. The applicant attached correspondent to the founding affidavit in an effort to establish that between 9 February 2017 and 10 May 2019, it made regular enquiries as to the status of the matter. Two observations can be made. The first is that it is not open to an applicant to make out a case in an application for leave to appeal that ought properly to have been made in the answering affidavit in the main application. Secondly, the fact that there was no meaningful response to the applicant’s enquiries directed to the state
attorney for a period of more than two years ought to have alerted the applicant to that fact that the matter was being handled with a lack of due diligence.
[3] In these circumstances, the application for leave to appeal stands to be dismissed. The applicant has only itself (and the state attorney) to blame for its misfortune, and the first respondent should not be deprived of the benefit of the award issued in his favour on that account.
I make the following order:
1. The application for leave to appeal is dismissed.
André van Niekerk
Judge