Theledi v Police and Prisons Civil Rights Union and Others (J395/2022) [2024] ZALCJHB 415 (31 October 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: J 395/2022

In the matter between:

NKOSINATHI THELEDI Applicant and POLICE AND PRISONS CIVIL RIGHTS UNION First Respondent ZIZAMELA ERNST MAKAZA Second Respondent MBONGENI JEFFREY DLADLA Third Respondent

Decided: In Chambers

Delivered: 31 October 2024

This judgment was handed down electronically by circulation to the parties' representatives by email. The date for hand-down is deemed to be on 31 October 2024.

JUDGMENT: APPLICATION FOR LEAVE TO APPEAL

PRINSLOO, J

Introduction

[1] The Applicant filed an application for leave to appeal against the judgment and orders of this Court handed down on 27 March 2024.

The filing of submissions

[2] The notice of application for leave to appeal was filed on 16 April 2024.

[3] Rule 30(3) of the Rules of the Labour Court[1] (Rules), which applied at the time of the filing of the said application, provided that the application for leave to appeal must

be made within 15 days of the date of the judgment.

[4] Rule 30 (3A) provided that the parties must file submissions in respect of their application for leave to appeal and those submissions must be filed within 10 days of filing of the application for leave to appeal. Paragraph 15 of the Practice Manual of the Labour Court[2] (Practice Manual), which also applied at the time of filing the application for leave to appeal, dealt with applications for leave to appeal and provided as follows in paragraph 15.2:

‘Within 10 days of the filing of the application for leave to appeal, the party seeking leave must file its submissions in terms of Rule 30(3A) and the party opposing the leave must file its submissions five days thereafter. An application for leave to appeal will be decided by the judge in Chambers on the basis of the submissions filed in terms of Rule 30 (3A), unless the judge directs that the application be heard in open court.’

[5] It is evident from the Rules and the Practice Manual that the statement of the grounds for leave to appeal is not the same as the submissions, which must be filed ten days later. The Practice Manual specifically provided that the application for leave to appeal would be decided by the judge in chambers on the basis of the submissions filed in terms of Rule 30 (3A).

[6] It is trite that there is no automatic right of appeal against a judgment of the Labour Court. This much is clear from section 166(1) of the Labour Relations Act[3] (LRA) which provides that any party to any proceedings before the Labour Court may apply for leave to appeal to the Labour Appeal Court (LAC) against any final judgment or final order of the Labour Court. To be entitled to leave to appeal, an applicant in an application for leave to appeal must satisfy this Court that there is a reasonable prospect that another court would come to a different conclusion.[4]

[7] The Applicant had to file his submissions in support of the application for leave to appeal within 10 days of filing the application for leave to appeal. The Applicant’s submissions were to be filed by 30 April 2024 and the Respondent’s submissions, if the application was opposed, had to be filed by 8 May 2024.

[8] The Applicant’s submissions were only filed with the Registrar on 14 October 2024, five and a half months late without any application filed to condone the non-compliance with the Rules or the provisions of the Practice Manual in respect of the filing of the submissions.

[9] This Court and the Labour Appeal Court have considered the status of the Practice Manual[5] and held that in essence, the Manual promotes uniformity and consistency in practice and procedure and sets guidelines on standards of conduct expected of those who practise and litigate in the Labour Court and it promotes the statutory imperative of expeditious dispute resolution. The provisions of the Practice Manual were binding and had to be adhered to and it was not to be adhered to or ignored by parties at their convenience or election.

[10] In Ndebele v South African Police Service and Another[6], the Court was faced with an application for leave to appeal where neither party filed written submissions. The Court considered the provisions of paragraph 15.2 of the Practice Manual together with the judgment of Ralo v Transnet Port Terminals and Others[7] and held that –

‘[7] Considering that a Judge is entitled, in terms of the Practice Manual, to decide a leave to appeal application in chambers based on written submissions, the failure to file written submissions in these instances may be viewed to be similar to a party failing to appear in Court to argue the case, and all the consequences associated with it, which may include dismissing the application on this basis alone. But at the very least, this failure by the applicant leaves the leave to appeal application unmotivated.

[8] In my view, the applicant’s failure to file written submissions despite the clear provisions of the Practice Manual and despite being called on to do so, should lead to the dismissal of the application for leave to appeal for this reason alone.’

[11] In Mokoena v Member of Executive Council for Education: Gauteng and another[8], the applicant, although he had filed an application for leave to appeal, failed to file written submissions in accordance with Rule 30(3A) read together with paragraph 15.2 of the Practice Manual. The Court (Tlhotlhalemaje J) held that –

‘In the absence of compliance with the provisions of rule 30(3A) of the Rules of this Court read with paragraph 15.2 of the Practice Manual of this Court, the purported application for leave to appeal is not properly before the Court.’

[12] The test is not whether there is a possibility that another court could come to a different conclusion, the test is whether there is a reasonable prospect that another court would come to a different conclusion.

[13] It is further trite that an applicant in an application for leave to appeal must convince the court a quo that it has reasonable prospects of success on appeal. Appeals should be limited to matters where there is a reasonable prospect that the factual matrix could receive a different treatment or where there is some legitimate dispute on the law.

[14] In casu, the Applicant filed his submissions to set his motivation and argument on which it can be concluded that there is a prospect that another court would come to a different conclusion five and a half months late, without any application for condonation. The application, as it stands, is unmotivated.

[15] The Rules and the provisions of the Practice Manual were not complied with in respect of the filing of submissions and without an application for condonation, the matter is not properly before this Court.

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

Order

1. The application for leave to appeal is struck off the roll, with no order as to costs.

Connie Prinsloo

Judge of the Labour Court of South Africa

[1] GN 1665 of 1996: Rules for the Conduct of Proceedings in the Labour Court (repealed).

[2] Practice Manual of the Labour Court of South Africa (repealed).

[3] Act 66 of 1995, as amended.

[4] See: Woolworths Ltd v Matthews [1999] 3 BLLR 288 (LC).

[5] Ralo v Transnet Port Terminals and others [2015] ZALCPE 69; [2015] 12 BLLR 1239 (LC) (Ralo); Tadyn Trading CC t/a Tadyn Consulting Services v Steiner and others (2014) 35 ILJ 1672 (LC); Samuels v Old Mutual Bank [2017] ZALAC 10; [2017] 7 BLLR 681 (LAC) (Samuels).

[6] (JR2395/14) [2017] ZALCJHB 251 (4 July 2017).

[7] Ralo supra at para 9.

[8] (J1539/18) [2021] ZALCJHB 292 (22 September 2021) at para 3.