Nxumalo v National Bargaining Council for the Chemical Industry (NBCCI) and Others (JR1170/13) [2016] ZALCJHB 212 (15 June 2016)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not reportable

Case no: JR1170/13

In the matter between:

MGEZENI GASBAT NXUMALO

Applicant

and

THE NATIONAL BARGAINING COUNCIL FOR

THE CHEMICAL INDUSTRY (NBCCI)

First Respondent

COMMISSIONER CHRIS SIZILI MBILENI N.O.

Second Respondent

COMMISSIONER LISA MOSALA MATLATLE N.O.

Third Respondent

SICAD SOUTH AFRICA (PTY) LTD

Fourth Respondent

Date heard: In Chambers

Date delivered: 15 June 2016

Summary: Application for condonation for late filing of leave to appeal. No prospects of success, condonation refused.

COOK AJ

Introduction

[1] The Applicant seeks condonation for the late filing of the Applicant’s leave to appeal.

Background

[2] On 8 October 2015, the Court made the following order:

‘1. The arbitration award issued by the Second Respondent under the auspices of the First Respondent under case number JPCHEN557-11/12 on 29 April 2013 is reviewed and set aside;

2. The award is substituted with an award that the dismissal of the Fourth Respondent was both substantially and procedurally fair.

3. No award as to costs.’

[3] On 11 December 2015, the Applicant filed his condonation application for the late filing of the leave to appeal together with his leave to appeal. The Applicant filed his submissions in respect of the leave to appeal on 19 January 2016.

[4] The Fourth Respondent filed its notice of intention to oppose and opposing submissions on 21 December 2015.

[5] In terms of Rule 30 (2)

‘If leave to appeal has not been made at the time of judgment or order, an application for leave must be made and the grounds for appeal furnished within 15 days of the date of the judgment or order against which leave to appeal is sought, except that the court may, on good cause shown, extend that period.’

[6] The application for leave to appeal should have been filed on or before 29 October 2015. The application having been filed on11 December 2015 is accordingly 31 days late.

[7] In Melane v Santam Insurance Co Ltd,[1] it was held that:

‘In deciding whether sufficient cause has been shown, the basic principle is that the Court has a discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefor, the prospects of success, and the importance of the case. Ordinarily these facts are interrelated: they are not individually decisive, for that would be a piecemeal approach incompatible with a true discretion, save of course that if there are no prospects of success there would be no point in granting condonation. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the facts. Thus a slight delay and a good explanation may help to compensate for prospects of success which are not strong. Or the importance of the issue and strong prospects of success may tend to compensate for a long delay. And the respondent's interest in finality must not be overlooked.’

[8] In Grootboom v National Prosecuting Authority and Another,[2] the Constitutional Court held:

‘51. The interests of justice must be determined with reference to all relevant factors. However, some of the factors may justifiably be left out of consideration in certain circumstances. For example, where the delay is unacceptably excessive and there is no explanation for the delay, there may be no need to consider the prospects of success. If the period of delay is short and there is an unsatisfactory explanation but there are reasonable prospects of success, condonation should be granted. However, despite the presence of reasonable prospects of success, condonation may be refused where the delay is excessive, the explanation is non-existent and granting condonation would prejudice the other party. As a general proposition the various factors are not individually decisive but should all be taken into account to arrive at a conclusion as to what is in the interests of justice.’

Analysis

[9] The delay in this matter is not excessive as to cause the Third Respondent prejudice.

[10] The explanation for the delay lacks particularity as to what occurred from 23 November to 11 December, however, the Court finds the explanation reasonable in the circumstances.

[11] In this matter, the issue of condonation turns on the issue of prospects of success. In order to determine the prospects of success, the Court needs to consider whether the leave to appeal has prospects of success.

[12] The test to be applied in an application such as the present is that referred to in s 17 of the Superior Courts Act, 10 of 2013. Section 17(1) provides:

‘Leave to appeal may only be given where the judge or judges concerned are of the opinion that –

(a) (i) the appeal would have a reasonable prospect of success; or

(ii) there is some other compelling reason why the appeal should be heard,

including conflicting judgements on the matter under consideration;

(b) the decision sought on appeal does not fall within the ambit of section 16 (2) (a); and

(c) where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties.

[3] The traditional formulation of the test that is applicable in an application such as the present requires the court to determine whether there is a reasonable prospect that another court may come to a different conclusion to that reached in the judgment that is sought to be taken on appeal. As the respondents observe, the use of the word “would” in s17(1)(a)(i) are indicative of a raising of the threshold since previously, all that was required for the applicant to demonstrate was that there was a reasonable prospect that another court might come to a different conclusion (see Daantjie Community and Others v Crocodile Valley Citrus Company (Pty) Ltd and Another (75/2008) [2015] ZALCC 7 (28 July 2015). Further, this is not a test to be applied lightly – the Labour Appeal Court has recently had occasion to observe that this court ought to be cautious when leave to appeal is granted, as should the Labour Appeal Court when petitions are granted. The statutory imperative of the expeditious resolution of labour disputes necessarily requires that appeals be limited to those matters in which there is a reasonable prospect that the factual matrix could receive a different treatment or where there is some legitimate dispute on the law (See the judgment by Davis, JA in Martin and East (Pty) Ltd v NUM (2014) 35 ILJ 2399 (LAC), and also Kruger v S 2014 (1) SACR 369 (SCA) and the ruling by Steenkamp, J in Oasys Innovations (Pty) Ltd v Henning and Another (C 536/15, 6 November 2015).’[3]

[13] The Applicant submits, inter alia, in terms of his submissions for leave to appeal:

13.1 the Court erred in finding that the employer had a rule that the employees were not allowed to enter the prohibited area;

13.2 the Applicant denies having told Mahlangu that he bumped the machine;

13.3 The applicant was not on good terms with Mahlangu;

13.4 even if the rule was breached this could not amount to dismissal;

13.5 Mahlangu’s evidence should have been rejected because of discrepancies;

13.6 the Court erred in finding that the trust relationship had irretrievably broken down;

13.7 Court erred in finding that the Commissioner did not have a proper basis that the presiding officer was bias; and

13.8 That another Court submits that another Court can arrive at a different judgment if the totality of the evidence is considered and

objectively assessed.

[14] The Fourth Respondent addressed each of the Applicant’s submissions of in its opposing submissions.

[15] The evidence properly considered proved that on a balance of probabilities the Applicant damaged the forklift in a prohibited area, as he was the only person in the area using the forklift at the relevant time.

[16] The Applicant, by his conduct and in particular his retraction of his confession and persistence in his denial of casing the damage,

demonstrated that the trust relationship had irretrievably broken down.

[17] The record does not support the finding that Mahlangu contradicted his evidence and the Commissioner provides no basis upon which to justify such a conclusion.

[18] The record also reflects that the Applicant did not confront Mahlangu with the attack on Mahlangu’s credibility due to him not being on good terms with the Applicant because he was a member of the union.

Conclusion

[19] After careful consideration, there is nothing in the submissions of the Applicant that persuades me that any appeal would have a reasonable prospect of success.

[20] Accordingly, the Court finds that there is no prospects of success in this matter.

[21] In light if the Applicant’s personal circumstances, the Court finds that it is not in in the interests of law and fairness to award costs against the Applicant.

[22] The Court makes the following order:

1. The application for condonation is dismissed.

2. Leave to appeal is refused.

3. No award as to costs.

____________

Acting Judge of the Labour Court of South Africa

[1] 1962 (4) SA 531 (A) at 532C-D.

[2] 2014 (2) SA 68 (CC); 2014 (1) BCLR 65 (CC); [2014] 1 BLLR 1 (CC); (2014) 35 ILJ 121 (CC) at para 51.

[3] Seatlholo and Others v Chemical, Energy, Paper, Printing, Wood and Allied Workers' Union and Others (J2595/15) [2016] ZALCJHB 72 (24 February 2016).