National Lotteries Commission v Commission for Conciliation, Mediation and Arbitration and Others (JR835/19) [2021] ZALCJHB 317 (1 October 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR835/19

In the matter between:

NATIONAL LOTTERIES COMMISSION Applicant

and

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION First

Respondent

COMMISSIONER DAVID MAREI SELLO N.O Second Respondent

TSHILILO CORDELIA NDONYANE Third Respondent

Decided: In chambers

Delivered: In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation

to the parties' representatives by email. The date for hand-down is deemed to be 01 October 2021.

JUDGMENT: APPLICATION FOR LEAVE TO APPEAL

NKUTHA-NKONTWANA. J

[1] The third respondent seeks leave to appeal the whole judgment and order of this Court handed down on 04 June 2021. Leave is sought to appeal to the Labour Appeal Court (LAC) on the grounds articulated in its notice of the application for leave to appeal dated 18 June 2021.

[2] The application is vehemently opposed by the applicant and it also takes a point in limine in relation to the late filing of the third respondent’s written submissions in support of the application for leave to appeal.

[3] I deal first with the late filing of the third respondent’s written submissions. The third respondent concedes that her written submissions were filed outside of the requisite period in terms of Labour Court (Rules) read together with the Labour Court Practice Manual (Practice Manual). Clause 15 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 thereafter, the party opposing the leave must file its submissions five days.

[4] The third respondent’s written submissions were only filed on 30 August 2021. The degree of lateness is six weeks and there is no formal application for condonation. Instead, the issue of condonation is dealt with in the thirst respondent’s written submission. I agree with the applicant that in the absence of a formal condonation application, the third respondent leave to appeal is not properly before the Court. Nonetheless, to extent that the third respondent does address the issue of condonation in her written submissions, I am inclined to consider it.

[5] The degree of lateness is obviously excessive. The explanation for the delay is that the third respondent’s attorney, Mr Mnisi, took ill and only returned to work on 23 August 2021. The challenge with this explanation is that it is not supported by any proof nor confirmation by Mr Mnisi himself. That being the case, the explanation is unsatisfactory. Ordinary that would be the end of the matter as I am not obliged to consider the prospects of success.

[6] Even so, for competences sake, I have looked at the prospects of success and I am not convinced that the leave to appeal should not be granted. I have considered the third respondent’s various grounds of appeal in her written submissions and it is apparent that the issues canvassed therein are studiously addressed in the impugned judgment. To that extent, I defer to the reasons therein as it patently superfluous to reiterate them in this judgment.

[7] It is trite that before leave to appeal may be granted, there must be a sound and rational basis for the conclusion that there are prospects of success on appeal.[1] When it comes to labour matters, another pivotal consideration is the imperative that labour disputes must be expeditiously resolved.[2]

[8] Having holistically assessed all the grounds of appeal, I am convinced that the third respondent failed to show that the leave to appeal bears reasonable prospects of success. Put differently, there are no prospects that another court might reasonably arrive at a decision different to the one reached by this Court.

[9] It follows that the indulgence to condone the late filing of the third respondent’s written submissions should be refused and the application for leave to appeal be dismissed.

[10] Turning to the issue of costs, I am not disposed to award costs against the third respondent in line with the requirements of the law and fairness.

[11] Accordingly, the following order is made:

1. The indulgence to condone the late filing of the third respondent’s written submissions is refused.

2. The application for leave to appeal is dismissed.

3. There is no order as to costs.

P. Nkutha-Nkontwana

Judge of the Labour Court of South Africa

[1] See: Smith v S 2012 (1) SACR 567 (SCA) at para 7; MEC for Health, Eastern Cape v Mkhitha and Another [2016] ZASCA 176 at para 17.

[2] See: Martin and East (Pty) Limited v National Union Mineworkers and Others (2014) 35 ILJ 2399 (LAC).