Nimro 152 (Pty) Ltd t/a Hennenman Pick n Pay Mini Market v Makhetha and Others (JR20/10) [2017] ZALCJHB 110 (30 March 2017)
The court held that the delay in filing the application for leave to appeal was excessive and not justified by the applicant's decision to await the Constitutional Court's judgment in Myathaza v Johannesburg Metropolitan Bus Services. The rules of court require applications to be filed within prescribed timeframes,...
Source-derived case information.
- Citation
- [2017] ZALCJHB 110
- Parties
- Applicant: Nimro 152 (Pty) Ltd t/a Hennenman Pick n Pay Mini Market; Respondent: Tshepang George Makhetha; Respondent: Sello Mophaki N.O.; Respondent: The Commission for Conciliation, Mediation and Arbitration
- Court
- Labour Court Johannesburg
- Jurisdiction
- South Africa
- Case Number
- JR 20/10
- Procedural Posture
- Leave to Appeal / Application for Condonation for Late Filing of Leave to Appeal
- Outcome
- Application for condonation dismissed; attorney precluded from charging fees for this application.
- Judges
- Rabkin-Naicker
- Legal Topics
- Condonation, Leave to Appeal, Stare Decisis, Rule of Law, Court Rules
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nimro 152 (Pty) Ltd t/a Hennenman Pick n Pay Mini Market
Applicant
Tshepang George Makhetha
Respondent
Sello Mophaki N.O.
Respondent
The Commission for Conciliation, Mediation and Arbitration
Respondent
Procedural Posture
Leave to Appeal / Application for Condonation for Late Filing of Leave to Appeal
Legal Issues
- 1 Whether condonation should be granted for the late filing of an application for leave to appeal.
- 2 Whether awaiting a Constitutional Court decision justifies delay in filing for leave to appeal.
- 3 Whether the attorney's conduct in delaying the application was permissible under the rules of court.
Ratio Decidendi
The court held that the delay in filing the application for leave to appeal was excessive and not justified by the applicant's decision to await the Constitutional Court's judgment in Myathaza v Johannesburg Metropolitan Bus Services. The rules of court require applications to be filed within prescribed timeframes, and the principle of stare decisis mandates adherence to binding judgments. The applicant's conduct offended both the rule of law and the procedural rules of the Labour Court. Consequently, condonation could not be granted, and the attorney was precluded from charging fees for the application.
Court Disposition
Application for condonation dismissed; attorney precluded from charging fees for this application.
Orders
- The application for condonation is dismissed.
- The attorney for the applicant is precluded from charging attorney client fees for this application.
Full Case Text
Judgment text and source record
35 paragraphs
IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case no: JR 20/10
In the matter between:
NIMRO 152 (PTY) LTD t/a HENNENMAN
PICK N PAY MINI MARKET
Applicant
and
TSHEPANG GEORGE MAKHETHA
First Applicant
SELLO MOPHAKI N.O.
Second Respondent
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION
Third Respondent
Heard: Decided in chambers
Delivered: 30 March 2017
JUDGMENT: LEAVE TO APPEAL
RABKIN-NAICKER J
[1] This is an application for condonation for the late noting of an appeal. I handed down judgment in the above matter on 14 June 2016. An application for leave to appeal was delivered on 13 February 2017, some 7 months out of time.
[2] Mr. Goldberg for the applicant avers that his client wished to appeal the judgment but he advised him to await the Constitutional Court decision in Myathaza v Johannesburg Metropolitan Bus Services (SOC) Limited t/a Metrobus and Others[1] decided on 15 December 2016.
[3] According to his papers, he became aware of the judgment on 10 January 2017. The further excessive delay is explained
in his affidavit by reciting his work diary up until 13 February 2017.
[4] The order in my judgment was premised on a binding judgment of the Labour Appeal Court. The order was made according to the principles of stare decisis. It is trite that this rule is not simply a matter of respect for the courts of higher authority but a manifestation of the rule of law itself. To deviate from this rule is to invite legal chaos.[2]
[4] The notion that a litigant can await the decision of the Constitutional Court before launching an application for leave to appeal against a judgment of this Court offends against the rule of law. It also offends against the Rules of this Court which exist to regulate legal proceedings in an orderly way in order to see that justice is done.
[5] In the circumstances, this application cannot be granted. The attorney for the applicant should not be permitted to charge his client fees for this application.
Order
[6] I make the following order:
1. The application for condonation is dismissed.
2. The attorney for the applicant is precluded from charging attorney client fees for this application.
____________________
H. Rabkin-Naicker
Judge of the Labour Court of South Africa
[1] [2016] ZACC 49; (2017) 38 ILJ 527 (CC); [2017] 3 BLLR 213 (CC).
[2] See Camps Bay Ratepayers and Residents Association and Another v Harrison and Another [2010] ZACC 19; 2011 (2) BCLR 121 (CC); 2011 (4) SA 42 (CC) para 28