POPCRU Group of Companies (Pty) Ltd v Mahlase and Another (J432/12) [2014] ZALCJHB 332 (1 September 2014)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case no: J 432/12

POPCRU GROUP OF COMPANIES (PTY) LTD Applicant And THATO MAHLASE UNIQUE STANDING INVESTMENTS 108 (PTY) LTD First Respondent Second Respondent

Decided in Chambers

Decided: 1 September 2014

JUDGMENT – APPLICATION FOR LEAVE TO APPEAL

TLHOTLHALEMAJE, AJ

Introduction:

[1] This is an application for leave to appeal against the judgement and order of this court handed down on 9 May 2014 in terms of which the Applicant’s application for condonation in respect of its late filing of a statement of defence was dismissed with costs. For ease of reference the parties will remain cited as they were in the judgment. The application for leave to appeal is unopposed.

Grounds of seeking leave to appeal:

[2] The Applicant herein submitted that condonation should have been granted and that another Court may reasonably come to a different conclusion relating thereto in that:

2.1 the Court erred in coming to the conclusion that the Applicant had failed to show good cause for the delay;

2.2 the Court erred in finding that the Applicant’s reasons for the delay, namely that it was not in possession of certain documents, and the prospects of success were lacking;

2.3 the period of delay was not excessive;

2.4 the fact that the employment relationship and the section 197 transfer are denied by the Applicant, which factor was of paramount importance combined with the prospects of success;

2.5 the Court erred in coming to the conclusion that the Applicant had failed to demonstrate that it had prima facie prospects of success;

2.6 the Court did not properly consider the question of onus as to whether there was a section 197 transfer. The court should have found that the prospects of success and the importance of the case were overriding factors in this case, and that condonation should have been granted.

The legal framework and evaluation:

[3] The traditional test in deciding whether to grant leave to appeal is whether there are reasonable prospects that another court, in this case, the Labour Appeal Court, might come to a different conclusion[1]. The Applicant’s main contention was that by dismissing the application for condonation, the doors of the court had been closed to it to defend itself against a claim instituted by the Respondent for an amount of R1, 344 million based on an alleged contract of employment that arose as a result of an alleged transfer of a contract of employment.

[4] A pertinent point made during the hearing of the application for condonation, and further raised in this application was that there were factual disputes in regards to whether a section 197 transfer had taken place or not. Inasmuch as I was convinced that the period of the delay in filing the statement of defence was excessive, and that the Applicant had not proffered a reasonable or satisfactory explanation for the delay, in view of the fact that factors for consideration in such applications are not to be considered in isolation, there are reasonable prospects that the Labour Appeal Court may come to a different conclusion on the aspect of prospects of success.

[5] In the result, having reflected dispassionately upon the decision sought to be appealed against and the Applicant’s grounds for leave to appeal, I am of the view that the application should be granted.

Order:

The application for leave to appeal is granted.

_________________

Tlhotlhalemaje, AJ

Acting Judge of the Labour Court of South Africa

[1] Ncgobo v Tente Casters (Pty) Ltd (2002) 23 ILJ 1442 (LC); Minister of Safety and Security and Another v Madyibi (1034/2004) [2008] ZAECHC 180 (30 October 2008)