Ngidi v van der Merwe NO and Others (J2374/13) [2021] ZALCJHB 135 (2 July 2021)

IN

THE LABOUR COURT OF SOUTH AFRICA HELD AT JOHANNESBURG

Not reportable

Case no: J 2374/13

In the matter between:

DUMISANI

NKOSINATHI NGIDI

Applicant

And

COMMISSIONER F J VAN DER MERWE N.O

First Respondent

SAFETY AND SECURITY

SECTORAL

BAIRGANING

COUNCIL

Second Respondent

SOUTH

AFRICAN POLICE SERVICE

Third Respondent

Heard: In Chambers

Delivered: 02 July 2021.

JUDGEMENT:

LEAVE TO APPEAL

Mabaso, AJ

[1] This is an application for leave to appeal against the whole judgment of this Court delivered on 28 August 2019. The notice of appeal was filed on 03 August 2020, more than 11 months beyond the 15-day deadline prescribed by Rule 30(2) of the Rules of this Court, as the clock started ticking for the Applicant from the day I delivered the ex tempore judgment. It is prudent to highlight that the Applicant in his papers is not suggesting that the delay was caused by any attempt to transcribe the ex tempore judgment; and considering the grounds submitted, I even doubt that the current legal representatives are in possession of my judgement dismissing the review application and are aware of the wisely made concessions by Mr Netshipise (the previous Counsel) who argued the review application.

[2] This application is accompanied by a condonation application, which was delivered in March 2021. In my interlocutory judgment of 19 January 2021, herein I deal with the history of this matter.

[3] In deciding the condonation application, I have to consider that it is trite that an applicant must show good or sufficient cause. Factors to be taken into account include the period for the delay, explanation for the delay, prospects of success in the appeal and prejudice.

[4] The delay in filling the notice of appeal is long.

[5] Since the Applicant lays blame at the Wits Law Clinic (the Law Clinic)'s doorstep for the delay between September 2019 and March 2020, I need to indicate that the Law Clinic is blameless herein because the Applicant paradoxically in his affidavit confirms that the Law Clinic had not accepted an instruction to deliver the notice of appeal, as he says the Law Clinic advised him that it “was no longer opening new files for 2019 and …one [Mr Mahlako] will keep the copies…and advise whether a file will be opened in light of the merits when they open the files”. Therefore, I conclude that there is no explanation for this period, as the Applicant conduct indicates that during this period, he remained passive in the face of non-action as he is not suggesting that he did not have funds to instruct private attorneys following the termination of the first attorneys.

[6] The Applicant then approached the current attorneys on 08 June 2020, who immediately briefed Counsel, and the leave appeal was delivered on 03 August 2020. A proper condonation application was only delivered in March 2021, following this Court judgment of 19 January 2021. I take no issue further about this aspect, considering that current attorneys had delivered only an affidavit and the Counsel was of the view that there was no need for notice of motion. Therefore, it was fair to direct them to fully comply with the Rules and Practice Manual as none of the Respondent had entered an appearance to oppose this matter and there was no service affidavit.

[7] In addition to the lack of reasonable explanation for the September 2019/March 2020 period, and the long delay in delivering the leave to appeal, I have considered the grounds for leave to appeal and my analysis of the matter. Unfortunately, I am not convinced that another Court would overturn my decision.

Order

[8] In the circumstances, the following order is made:

1. The condonation application is dismissed.

2. There is no order as to costs.

______

S Mabaso

Acting Judge of the Labour Court of South Africa