South African Municipal Workers Union obo Molaolwa v Sol Plaatje Municipality (JS 646/20) [2022] ZALCJHB 284 (10 October 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

case no: JS 646/20

In the matter between:

SOUTH AFRICAN MUNICIPAL WORKERS’ UNION

obo MMUSIMANG ELIAS MOLAOLWA

Applicant

and

SOL PLAATJE MUNICIPALITY

Respondent

Considered: In Chambers

Delivered: 10 October 2022

Summary: Application for leave to appeal; no reasonable prospect that the appeal would succeed; Application dismissed with no order for costs.

JUDGMENT

VOYI AJ,

Introduction

[1] The Applicant (“SAMWU”) seeks leave to appeal against the judgment of this court dated 18 February 2022, dismissing an application for condonation of the late delivery of a statement of claim.

[2] The statement of claim was delivered by SAMWU in pursuit of an unfair dismissal claim on behalf of Mr Mmusimang Elias Molaolwa (“Molaolwa”), who is a member of the said trade union.

[3] The application for leave to appeal is opposed by the Respondent (“the Municipality”)

Grounds for seeking leave to appeal

[4] The application for leave to appeal advances various grounds upon which it is contended this court erred and misdirected itself in its overall determination of SAMWU’s application for condonation.

[5] It is not necessary, in this judgment, to regurgitate the actual grounds for seeking leave to appeal as set out in the notice dated 7 March 2022, and elaborated upon in the heads of argument delivered on behalf of SAMWU on 24 March 2022.

[6] In the heads of argument delivered by the Municipality in opposing the application for leave to appeal, a point is taken on that SAMWU’s heads of argument were delivered outside the time limit set out in paragraph 15.2 of the Practice Manual of the Labour Court of South Africa, 2013.

[7] I am inclined to consider the application for leave to appeal notwithstanding this non-compliance, which, in my view, reveals a pattern of a litigant being lax in abiding by prescribed time limits.

[8] In essence, SAMWU takes issue with this court’s approach in determining the application for condonation. It is said that this court determined the condonation application ‘solely on the requirement of delay’.

[9] It is also submitted that this court misapplied the well-known case of Melane v Santam Insurance Co. Ltd and decided that the prospects of success were immaterial to the determination of condonation.

[10] There is also a submission that this court misapplied the case of Steenkamp and Others v Edcon Limited in support of its decision to focus solely on the requirement of delay.

[11] Furthermore, SAMWU contends that this court erred and misdirected itself in its consideration of the requirement of delay.

[12] The other argument is that the court failed to consider Molaolwa’s successful establishment of his prospects of success, the importance of the case to Molaolwa, and the prejudice Molaolwa had endured prior to lodging his claim.

Evaluation

[13] The provisions of s 17(1) of the Superior Courts Act[1] lay down the test to be applied in an application for leave to appeal. In particular, s 17(1)(a)(i) stipulates that I may only grant leave to appeal if I am of the opinion that the intended appeal “…would have a reasonable prospect of success;”.

[14] Observing from the deliberate use of the modal verb “would” in s 17(1)(a)(i), it is by now trite that the threshold has been set higher for applications of the present nature.[2]

[15] In the judgment against which leave to appeal is being sought, this court was dealing with an application for condonation which was approximately 425 days late.

[16] In the said judgment, I stated that the “… the delay is inordinate and each interval of the excessive delay has not been explained, either satisfactorily or at all.”[3] I accordingly dealt with the degree of lateness as well as the explanation given for the delay.

[17] In my determination of the application for condonation, I found the advanced prospects of success to be immaterial.

[18] In Colett v Commission for Conciliation, Mediation & Arbitration,[4] the Labour Appeal Court stated thus:

“[38] There are overwhelming precedents in this court, the Supreme Court of Appeal and the Constitutional Court for the proposition that where there is a flagrant or gross failure to comply with the rules of court condonation may be refused without considering prospects of success. In NUM v Council for Mineral Technology it was pointed out that considering whether good cause has been shown the well-known approach adopted in Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 523 C-D should be followed, but —

‘[t]here is a further principle which is applied and that is without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without good prospects, no matter how good the explanation for delay, an application for condonation should be refused’.

[39] The submission that the court a quo had to consider the prospects of success irrespective of the unsatisfactory and unacceptable

explanation for the gross and flagrant disregard of the rules is without merit.”

[19] All things considered, I find nothing revealing any misapplication of relevant authorities in applying the further principle that ‘without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial.’

[20] Having thoroughly considered SAMWU’s application for leave to appeal and the legal submissions in support thereof, I am not persuaded that the desired appeal would have a reasonable prospect of success.

[21] SAMWU does not contend with the glaringly excessive nature of the delay, it being over 400 days. No attempt is made in the application for leave to appeal to point out where one will find an explanation, in the actual application for condonation, for the delay for the period 20 February 2020 to 26 March 2020. Furthermore, I still maintain that the explanation given for the delay from 18 August 2020 to 23 October 2020 is not convincing at all.

[22] As concluding remarks, it seems to me a great deal of accountability has to be taken by SAMWU and its legal representatives for failing to act expeditiously in this matter. As at 20 February 2020, the statement of claim was already late. One would have expected that the statement of claim be delivered way before the national lockdown which commenced on 26 March 2020. Instead of owning up to their manifest lack of diligence, SAMWU and its legal representatives persist with a barrage of unfounded criticism against this court’s judgment, obviously in an attempt to exculpate themselves from responsibility towards the individual member. One hopes that the member, who ultimately has to bear the brunt of this colossal ineptitude, can see through the red herring.

[23] The Municipality only asks that the application for leave to appeal be dismissed and seeks no order for costs.

Order

[24] I therefore make the following order:

1 The application for leave to appeal is dismissed.

2 There is no order as to costs.

NP Voyi

Acting Judge of the Labour Court of South Africa

[1] Act 10 of 2013 (“the Superior Courts Act”).

[2] Seathlolo & others v Chemical Energy Paper Wood & Allied Workers Union & others (2016) 37 ILJ 1485 (LC) at para 3.

[3] At para [29].

[4] (2014) 35 ILJ 1948 (LAC)