Symeg Trading (Pty) Ltd t/a Pick 'n Pay Tsepisong v Sheriff, Roodepoort South and Others (J820/21) [2023] ZALCJHB 2 (17 January 2023)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: J 820/21

In the matter between:

SYMEG TRADING (PTY) LTD t/a PICK ‘N PAY

TSEPISONG Applicant

and

SHERIFF, ROODEPOORT SOUTH First

Respondent

KELEBOGILE MMUSI Second

Respondent

KARABO GABAOCE N.O. Third

Respondent

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION Fourth

Respondent

Decided: In Chambers

Delivered: 17 January 2023

Summary: Application for leave to appeal – application out of time and no good cause shown for the granting of condonation – applicant failed to file written submissions as contemplated by Practice Manual – no case made out for leave to appeal on the merits in any event – application for leave to appeal consequently dismissed

Costs – application for leave to appeal ill founded and an abuse of process – costs awarded

JUDGMENT: LEAVE TO APPEAL

SNYMAN, AJ

Introduction

[1] The applicant had brought an urgent application on 24 October 2022 to stay the execution of a default arbitration award in favour of the second respondent, pending the finalisation of a review application brought by the applicant to challenge a rescission ruling refusing the applicant’s application for rescission of such default award. The matter came before me for argument on 10 November 2022. I dismissed the application with costs on the same day, and in the order granted specified that written reasons for such order would be given on 18 November 2022. Written reasons for the order were then indeed provided on 18 November 2022 by way of a written judgment.

[2] The current application for leave to appeal against my judgment and order as aforesaid, was only filed by the applicant on 12 December 2022. Because this application for leave to appeal was out of time, the applicant needed to apply for condonation, but failed to do so. This issue will be further addressed below.

[3] The applicant further needed to file written submissions as contemplated by Rule 30(3A) of the Labour Court Rules and clause 15.2 of the Practice Manual, in support of its application for leave to appeal, and also failed to discharge this obligation on it. Nonetheless, the second respondent discharged this corresponding obligation on her, and filed written submissions on 4 January 2023.

[4] There is no necessity to delay the deciding of the application for leave to appeal any longer, and I will now proceed to decide this application based on what is before me, the time limits as contemplated by the Practice Manual and Rule 30 having expired.

[5] Clause 15.2 of the Practice Manual further provides that an application for leave to appeal will be determined by a Judge in chambers, unless the Judge directs otherwise. I see no reason to direct otherwise and will therefore determine the applicant’s leave to appeal application in chambers.

Late Application for Leave to Appeal

[6] Rule 30(3) of the Labour Court Rules applies to instances where the written reasons for an order are provided subsequent to the order being granted. In such instances, an application for leave to appeal must be made and the grounds for appeal furnished, within 10 (ten) days of the date when the written reasons for the order in respect of

which leave to appeal is sought were provided. The Court may condone the late filing of such application for leave to appeal on good cause shown. In MCC Contractors (Pty) Ltd v Johnston NO and Others the Court held:

‘… The Rules of the Labour Court (and those of the High Court) provide for time periods within which an application for leave to appeal must be brought. There are important policy considerations for requiring a party to file an application for leave to appeal within a certain time period. Where a party does not observe the rules, such a party must apply for condonation and it is for the applicant to satisfy the court that there is sufficient cause to excuse him or her from not complying with the rules. …’

[7] Considering that the comprehensive written reasons for my order of 10 November 2022 was provided on 18 November 2022, the 10 days’ time limit as contemplated by Rule 30(3) within which to bring an application for leave to appeal expired on 2 December 2022. The applicant’s application for leave to appeal was only brought on 12 December 2022, which is six working days outside the prescribed time limit. It follows that the applicant needed to apply for condonation.

[8] In her written submissions opposing the application for leave to appeal, the second respondent pertinently raised an objection in limine to the effect that the application for leave to appeal was out of time without an application for condonation. Despite this, the applicant has done nothing to at least attempt to regularize this state of affairs, and must be non-suited as a result.

[9] Therefore, the applicant has not sought to show good cause for its late application for leave to appeal. In the absence of seeking to show good cause, this Court cannot come to the assistance of the applicant, and on this basis alone, the applicant’s application for leave to appeal must fail. As held in SA Transport and Allied Workers Union and Another v Tokiso Dispute Settlement and Others :

‘… where the steps constitute a jurisdictional step, a time-limit, and the party is out of time then, in the absence of an application for condonation, a court cannot come to the party's assistance. …’

And further in November and Others v Burma Plant Hire (Pty) Ltd the Court said:

‘… The applicants further argue that this court should exercise a discretion and allow this matter to proceed. But in order for this court to do this, and as discussed above, the applicants needed to show good cause by applying for condonation. Without this, no discretion can be exercised. …’

Non-compliance with the Practice Manual

[10] The applicant is obliged to comply with the provisions of the Practice Manual, which is not just some or other guideline which parties can adhere to at their leisure. As said in National Education Health and Allied Workers Union on behalf of Leduka v National Research Foundation :

‘The Practice Manual is binding on litigating parties and must be complied with. It is not just a guideline, but an actual prescript. …’

[11] In terms of clause 15 of the Practice Manual, the applicant’s written submissions in terms of Rule 30(3A) in support of the application for leave to appeal had to be filed within 10 (ten) days of bringing its application for leave to appeal, which in casu was brought on 12 December 2022. Thus, the submissions were due by 29 December 2022 (considering all the public holidays in between). As stated above, and as at the date of handing down of this judgment in the application for leave to appeal, the applicant has still not filed any such written submissions.

[12] Similarly, and in the case of a failure to comply with the Practice Manual, a litigating party is obliged to show good cause as to why the Court should nonetheless still entertain the matter, which must be done by way of a proper condonation application. The applicant has also failed to do so. In short, the applicant has done exactly what this Court has been critical of in the past, being that of treating the Practice Manual as some sort of guideline which the applicant could adhere to at its leisure. The applicant should be non-suited for this kind of conduct.

[13] The applicant’s application for leave to appeal thus falls to be dismissed on this ground alone, as well.

[14] However, and for the sake of being complete, I will nonetheless consider the merits of the applicant’s application for leave to appeal, on the basis of the grounds advanced by the applicant in the application for leave to appeal itself.

Leave to appeal

[15] It is trite that in any application for leave to appeal, this Court must determine whether there is a reasonable prospect that another Court would come to a different conclusion to that of the Court a quo, or in other words, whether the appeal would have a reasonable prospect of success. This means that an applicant for leave to appeal must convince the Court on proper grounds that there is a reasonable prospect or realistic chance of success on appeal, and not just a mere possibility of success, or an arguable case or a case that is at least not hopeless.

[16] As a general proposition, the applicant’s grounds for seeking leave to appeal are in essence nothing more else but the applicant raising the same issues already argued and then disagreeing with the conclusions I came to, especially where it came to the evaluation of the evidence and the relevant provisions of law. To merely disagree with my conclusions does not establish a reasonable prospect of another Court coming to a different conclusion as envisaged by the test in considering an application for leave to appeal, nor does it establish a reasonable prospect of success on appeal. Of particular concern is the applicant’s continued failure to provide any kind of satisfactory contrary argument for the consequences of the applicant’s review application having become incompetent, based on the provisions of the Practice Manual, as recently confirmed by the Labour Appeal Court in E Tradex (PTY) Ltd t/a Global Trade Solution v Finch and Others .

[17] In simple terms, and without any competent pending review application, there can be no legal foundation upon which any discretion for an interim stay of execution can be exercised. That should be the end of the matter, and the applicant simply has zero prospect of success on appeal in this regard.

[18] Many of the applicant’s grounds for seeking leave to appeal are nonsensical or completely lacking in any substance. This includes a spurious contention that reasons must be provided on the date when an order is granted, which is clearly, even on a simple reading of the Rules, not correct. The applicant even suggests that the entire history of this matter should be disregarded, as if it does not exist, which contention flies squarely in the face of what needs to be done when a judicial discretion is exercised. The applicant is clearly trying to avoid the application of the res judicata principle, for which the applicant in reality has no answer, by contrived means. I am even inclined to say that the applicant’s application for leave to appeal is entirely hopeless, with no prospects of success on appeal.

[19] Finally, I am convinced that the current application for leave to appeal is yet another step in a long history of spurious litigation put up by the applicant whenever the second respondent attempted to execute an award in her favour. It is untenable to allow this to continue, and the following dictum from the judgment in Martin & East (Pty) Ltd v National Union of Mineworkers and Others is apposite:

‘… I indicated that the events in this case took place in 2010. The Labour Relations Act was designed to ensure an expeditious resolution of industrial disputes. This means that courts, particularly courts in the position of the court a quo, need to be cautious when leave to appeal is granted.'

[20] I thus conclude that the applicant, overall, has shown no reasonable prospect that another Court could come to a different conclusion, has no prospects of success on appeal, and the leave to appeal application must fail.

Costs

[21] This leaves the issue of costs for the application for leave to appeal. The application for leave to appeal should not have been pursued. The application is in any event incompetent. I am satisfied that it constitutes an abuse of process. The applicant continues to show that it has little regard for the Rules of this Court, a fact also alluded to by Tlhotlhalemaje J in earlier related proceedings between the same parties. For the reasons already given in my original judgment of 18 November 2022, I am once again satisfied that the applicant should also be visited with a costs order in this application for leave to appeal.

[22] In the premises, I make the following order:

Order:

1. The applicant’s application for leave to appeal is dismissed with costs.

S. Snyman

Acting Judge of the Labour Court of South Africa