South African National Blood Service v National Education, Health and Allied Workers Union obo Mathobisa and Others (JR 654/2021) [2023] ZALCJHB 151 (26 May 2023)
Condonation for the late filing of the application for leave to appeal was refused because the explanation for the delay was unsatisfactory, being based solely on intra-union matters and internal consultations. The union was aware of the time limits and chose to prioritise its own internal processes. Even if...
Source-derived case information.
- Citation
- [2023] ZALCJHB 151
- Parties
- Applicant: South African National Blood Service; Respondent: National Education, Health and Allied Workers’ Union obo Reitumetse Mathobisa; Respondent: The Commission for Conciliation, Mediation and Arbitration; Respondent: Samson Phomodi N.O.
- Court
- Labour Court Johannesburg
- Jurisdiction
- South Africa
- Case Number
- JR 654/2021
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal Following Review Judgment
- Outcome
- Application for condonation and leave to appeal dismissed.
- Judges
- A van Niekerk
- Legal Topics
- Condonation for Late Filing, Leave to Appeal, Review of Arbitration Award, Parity Principle, Fair Dismissal
Source-derived case record
Summary, issues, holding and outcome
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Parties
South African National Blood Service
Applicant
National Education, Health and Allied Workers’ Union obo Reitumetse Mathobisa
Respondent
The Commission for Conciliation, Mediation and Arbitration
Respondent
Samson Phomodi N.O.
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Review Judgment
Legal Issues
- 1 Whether condonation should be granted for the late filing of the application for leave to appeal.
- 2 Whether the application for leave to appeal discloses reasonable prospects of success.
Ratio Decidendi
Condonation for the late filing of the application for leave to appeal was refused because the explanation for the delay was unsatisfactory, being based solely on intra-union matters and internal consultations. The union was aware of the time limits and chose to prioritise its own internal processes. Even if prospects of success were considered, they did not outweigh the lack of a satisfactory explanation. The original judgment had correctly set aside the arbitration award, as the parity principle was not determinative in the circumstances and the comparators were differently situated. There was no basis for a reasonable court to reach a different conclusion.
Court Disposition
Application for condonation and leave to appeal dismissed.
Orders
- Condonation for the late filing of the application for leave to appeal is refused.
- The application for leave to appeal is dismissed.
Full Case Text
Judgment text and source record
16 paragraphs
IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR 654/2021
In the matter between:
SOUTH AFRICAN NATIONAL BLOOD SERVICE Applicant And NATIONAL EDUCATION, HEALTH AND ALLIED WORKERS’ UNION obo REITUMETSE MATHOBISA First Respondent THE COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION Second Respondent SAMSON PHOMODI N.O. Third Respondent
Delivered: 26 May 2023
(This judgment was handed down electronically by circulation to the parties’ legal representatives, by email, publication on the Labour Court’s website and released to SAFLI. The date on which the judgment is delivered is deemed to be 26 May 2023.)
RULING: APPLICATION FOR LEAVE TO APPEAL
VAN NIEKERK, J
[1] The applicant (the first respondent in the main application) seeks leave to appeal against a judgment delivered by this court on 16 March 2023. In its judgment, the court upheld an application to review and set aside an arbitration award issued by the third respondent.
[2] The application was filed late, and the applicant has filed an application for condonation. The application for leave to appeal ought to have been filed by 11 April 2023. The application was filed in this court on 9 May 2023, 28 calendar days late. This is not an insignificant delay. The explanation for the delay is entirely centred on intra-union matters, including consultations with the union’s legal department and a regional congress. This is not a satisfactory explanation. The union was clearly aware of the applicable time limit and chose to give preference to its own internal exigencies. In the absence of a satisfactory explanation for the delay, condonation stands to be refused without reference to the applicant’s prospects of success. Even were I to take those into account, the prospects of success do not tilt the balance in the applicant’s favour. The award was set aside primarily because the third respondent found the employer to have acted inconsistently in circumstances where the comparators were differently circumstanced and where, in any event, the parity principle is but a single factor to be taken into account to determine the fairness of a dismissal. There is nothing in the application for leave to appeal that is not addressed in the judgment and which may have the result that a different court might reasonably come to a different conclusion.
I make the following order:
1. Condonation for the late filing of the application for leave to appeal is refused.
2. The application for leave to appeal is dismissed.
André van Niekerk
Judge of the Labour Court of South Africa