Naledi Local Municipality v South African Municipal Workers Union (SAMWU) obo Ngalo and Others (JR2417/2013) [2018] ZALCJHB 369 (30 October 2018)

REPUBLIC OF SOUTH AFRICA

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case no: JR 2417/2013

In the matter between:

NALEDI LOCAL MUNICIPALITY

Applicant

and

SOUTH AFRICAN MUNICIPAL WORKERS UNION

(SAMWU) obo D NGALO & 21 OTHERS

First Respondent

S VAN WYK N.O.

Second Respondent

SOUTH AFRICAN LOCAL GOVERNMENT

BARGAINING COUNCIL (SALGBC)

Third Respondent

Heard: In Chambers

Delivered: 30 October 2018

Summary: Leave to appeal application – served timeously but filed more than two years out of time – no explanation or application for condonation – submissions on leave to appeal also filed late – appeal in any event lacking prospects of success – application for leave to appeal dismissed.

JUDGMENT – LEAVE TO APPEAL

MOULTRIE AJ

[1] This is an application for leave to appeal against a judgment delivered on my behalf by Cele J on 5 May 2016.

[2] The procedural history of the matter after delivery of the judgment is of significance.

[3] It appears from the copy of the application for leave to appeal which eventually made its way into the court file (the circumstances are explained below) that it was originally signed by the attorneys for the applicant on 15 May 2016. It was then physically served on the first respondent’s attorneys, who stamped and signed it in confirmation of receipt on 20 May 2016. Although the document also bears the address of the registrar of this court at its physical seat in Braamfontein and its fax number, neither the original document, nor any faxed version thereof, appears in the court file. The applicant has furthermore not sought to contend that the document was ever despatched to the registrar, either by registered post or by fax.

[4] It would appear from the contents of the court file that on the same day that they received the application for leave to appeal (i.e. 20 May 2016), the first respondent’s attorneys despatched by registered post an application (seemingly prepared on 18 May 2016) in terms of section 158(1)(c) of the Labour Relations Act, 66 of 1995 seeking to have the arbitration award dated 4 November 2013 made an order of court. This application was received by the registrar’s office and bears the date-stamp of 2 June 2016. On 8 September 2016, the first respondent’s attorneys delivered a notice in terms of Rule 22B confirming that the court file had been paginated and indexed. A copy of the index of the section 158(1)(c) application was annexed. The duly bound, indexed and paginated section 158(1)(c) application is in the court file.

[5] On about 3 May 2018, almost exactly two years after the judgment was delivered, I was telephonically contacted by the Judge President’s associate who informed me that the first respondent had enquired about an application for leave to appeal in the matter, and asked whether I was aware of any such application. I was not. On the same day, the Judge President’s associate addressed an email to the applicant’s attorneys in which she correctly advised that: “[u]pon perusal of the court file I discovered that there is no copy of the application for leave to appeal and even the copy that [the first respondent] provided me with … doesn’t have the court stamp, meaning you only served the respondents and not the court. And since your application for leave to appeal … doesn’t have [a] court stamp it means there is no application brought to this court. Therefore if you wish to continue with the application you will have to first file with the court, then serve the respondents and file the heads of arguments”.

[6] On 17 August 2018, a hard-copy (but not the original) of the application for leave to appeal was filed at the office of the registrar. The document in the court file bears an original stamp of the registrar indicating the date of filing as 17 August 2018. This was the first time that a copy of the application for leave to appeal reached this Court, more than two years and three months after the delivery of the judgment.

[7] On 28 August 2018, the Judge President’s associate addressed correspondence to both sets of attorneys noting the filing of a copy of the application for leave to appeal on 17 August 2018 and drawing their attention to the provisions of paragraph 15 of this Court’s 2013 practice manual, as well as Rule 30(3A) of the Rules.

[8] On 29 August 2018, the first respondent’s attorneys addressed correspondence to the Judge President’s associate “placing on record” that:

a. The application for leave to appeal had been “served and filed” on 15 May 2016 – though no basis was indicated to suggest such filing had indeed taken place.

b. The first respondent’s notice of intention to oppose had been “served” on 30 May 2016. Although no allegation was made that this document was duly filed, a copy of a post office document indicating that a registered letter with reference RC 097 648 042 ZA had been posted to the Registrar on that day, was attached to the letter. Neither the original of this document, nor a copy thereof bearing the registrar’s stamp is contained in the court file.

c. On 30 September 2016, after the applicant had failed to deliver its submissions in relation to the leave to appeal as contemplated in paragraph 15.2 of this court’s practice manual, the first respondent’s attorneys had “served” their counsel’s written submissions in relation thereto. Again, no allegation was made that this document was duly filed, but a photocopy of such a document bearing the registrar’s stamp of 30 September 2016, as well as a signature purporting to be that of the first respondent’s attorney dated the same day was attached to the letter. Neither the original document nor a copy thereof bearing an original stamp is in the court file. The only evidence that the document was indeed filed is thus the photocopied annexure to the letter.

[9] On 3 September 2018, the applicant’s attorneys faxed their submissions in relation to the application for leave to appeal both to the first respondent’s attorneys and the registrar. No attempt was made to explain the late delivery of the document and no explanation was given as to the circumstances under which a copy of the application for leave to appeal had been filed on 17 August 2018. The applicant did not dispute the statements in the Judge President’s associate’s email of 3 May 2018 and letter of 28 August 2018 that no application for leave to appeal had been filed before 17 August 2018. No application for condonation, conditional or otherwise, was delivered in relation to the application for leave to appeal. A copy of the submissions was, however, filed with the registrar’s office on 25 September 2018, as evidenced by the fact that the document in the court file bears an original stamp of that date.

[10] Section 166(1) of the LRA entitles a party to apply to the Labour Court for leave to appeal to the Labour Appeal Court against any final judgment of the Labour Court. In terms of Rule 30(2), such an application must be made at the latest within 15 court days of the date of the judgment, save that the court may extend that period on good cause shown. Paragraph 15.3 of this court’s practice manual (2013) stipulates that an application for leave to appeal must be filed with the registrar in charge of appeals. Rule 5(1) stipulates that documents may be filed with the registrar either by physical delivery, or by sending a copy thereof by registered post, or by faxing the document. Rule 5(2)(b) stipulates that a document sent by registered post is considered to have been filed on the date on which it was “received” by the registrar. A document sent by fax is regarded as having been filed “on completion of the whole of the transmission of the fax”, but the second sentence of Rule 5(3) adds the requirement that “the original document must be lodged within 5 days of it being faxed”. Paragraph 15.1 of the practice manual further requires that a copy of any application for leave to appeal must, in addition to being filed with the relevant registrar, “also” be served on the judge’s secretary or (if that person is unavailable), on the secretary of any other judge in the seat where the matter was heard.

[11] Save for what appears to be a ‘throwaway’ remark in the first respondent’s attorney’s letter of 29 August 2018, there is no evidence that the application for leave to appeal was filed by any of the methods envisaged in Rule 5 prior to

17 August 2018. Moreover, the original document was not lodged with the registrar as required by the first sentence of Rule 5(3), which would appear to me to apply equally to all filing methods permitted by the Rule. There is furthermore no suggestion that the direction contained in paragraph 15.1 of the practice manual was complied with.

[12] In the absence of an application by the applicant to condone its failure to comply with Rule 30(2), let alone a showing of good cause therefore, the application for leave to appeal falls to be dismissed. I associate myself fully with the analysis of Molahlehi J in paragraphs 4 and 5 of MCC Contractors (Pty) Ltd v Johnston NO & others (2012) 33 ILJ 2096 (LC), the facts of which are in no material respect distinguishable from the current matter.

[13] I would add that even if I were to ignore, or condone, the applicant’s non-compliance with Rule 30(2), the parties’ respective submissions in respect of the application for leave to appeal were required, under Rule 30(3A), to have been “delivered on or before a date fixed by the judge”. The relevant dates have been fixed by means of paragraph 15.2 of the practice manual. They are as follows:

“[w]ithin 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”.

It is apparent that the applicant made no effort to comply with this direction. Given that the direction constitutes the ‘fixing’

of the dates, non-compliance requires condonation. Condonation is, however, not sought.

[14] Finally, I have in any event considered the submissions filed by the applicant in support of the application for leave to appeal, together with those filed on behalf of the first respondent. I am not persuaded that there are any reasonable prospects of success on appeal. Apart from the fact that (as I noted in footnote 10 of the judgment) the first respondent’s counsel abjured any reliance at the hearing of the review application on the contention that the employment of the applicant’s members would not have complied with the provisions of the Municipal Systems Act, 32 of 2000, such a contention would be of no assistance to the applicant, even if true.

[15] This is because such non-compliance would not have rendered the employment of the applicant’s members a nullity or void ab initio (compare Wierda Road West Properties (Pty) Ltd v Sizwe Ntsaluba Gobodo Inc 2018 (3) SA 95 (SCA) at para 22 – 23 and 28). At best, the employment of the members would have been voidable and, in the absence of any attempt by the applicant to set it aside, it must stand (see South African Airways SOC Ltd v National Transport Movement (2016) 37 ILJ 2128 (LC) at paras 12 – 16)

[16] I make the following order:

a. The application for leave to appeal is dismissed.

b. The applicant is ordered to pay the first respondent’s costs.

_______________

RJA Moultrie AJ

Acting Judge of the Labour Court of South Africa