Tlolane v Department of Public Works and Others (JR 1696/17) [2022] ZALCJHB 89 (5 April 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR 1696/17

In the matter between:

MOKGAETJI BELLA TLOLANE

Applicant

and

THE DEPARTMENT OF PUBLIC WORKS

First Respondent

THE DIRECTOR - GENERAL: DEPARTMENT OF

PUBLIC WORKS

Second Respondent

THE GENERAL PUBLIC SERVICE SECTORAL

BARGAINING COUNCIL (GPSSBC)

Third Respondent

SS THOKA N.O.

Fourth Respondent

Considered: In Chambers

Delivered: 05 April 2022

(In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation

to the parties' representatives by email. The date for hand-down is deemed to be on 05 April 2022)

JUDGMENT

CONDONATION - LEAVE TO APPEAL

PHEHANE, J

Introduction

[1] Following the judgement of 24 January 2022 in which I ordered that the applicant’s application for leave to appeal is struck off the roll for lack of jurisdiction, the applicant now brings an application for condonation for the late filing of the application for leave to appeal. This application is opposed by the first and second respondent (the respondents).

[2] The applicant avers that the dies within which to file her application for leave to appeal expired on 10 November 2021 and that her application was delivered on this date[1]. In the circumstances, the applicant contends that her application for leave to appeal was delivered on time. In this regard, she relies on the provisions of rule 5 of the Rules for the Conduct of Proceedings in the Labour Court,[2] which provides as follows:

‘5 Filing of documents

(1) Documents may be filed with the registrar in any one of the following ways, namely –

(a) by handing the document to the registrar;

(b) by sending a copy of the document by registered post; or

(c) by faxing the document.

(2) A document is filed with the registrar –

(a) on the date on which the document is handed to the registrar;

(b) on the date on which the document sent by registered post was received by the registrar; or

(c) on completion of the whole transmission of the fax.

(3) The original document must belong to the registrar. In the case of filing by faxing the document, the original document must be lodged within five days of it being faxed.’

[3] The applicant avers that on 12 November 2021, her attorney of record attended at this Court to deliver a hardcopy of the application for leave to appeal to the registrar.[3]

[4] The application for leave to appeal bears the court stamp of 12 November 2021. This is in keeping with the averment by the applicant that her attorney of record attended at the Labour Court on this date for the purposes of filing the hard copy of the application. What the applicant misses, are the provisions of item 15.1 of the Practice Manual of this Court,[4] (Practice Manual) which state as follows:

‘15. APPLICATIONS FOR LEAVE TO APPEAL

15.1 A copy of any application for leave to appeal filed in terms of Rule 30 must also be served on the secretary to the judge from leave to appeal is sought. If the judge’s secretary is not available, it may be served on the secretary of any other judge in the seat where the matter was heard.’

(Emphasis added).

[5] In view of the provisions of item 15.1 of the Practice Manual, it was incumbent upon the applicant to also serve the secretary to the judge from whom leave to appeal is sought, and not only to serve the application of the registrar of this Court as provided in rule 5. This was not done. Annexures “RB4” and “RB5”[5] on which the applicant relies to indicate that there was service on the registrar of this Court do not assist the applicant insofar as compliance with item 15.1 of the Practice Manual is concerned. Reliance solely on the provisions of rule 5 is therefore misplaced.

It would appear that the applicant consistently ignores the provisions of the Practice Manual. I deal with this further below.

[6] The application for leave to appeal was also struck off the roll for want of compliance with item 15.2 of the Practice Manual read with Rule 30(3A).[6]

[7] Item 15.2 provides as follows:

‘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.’

[8] The applicant contends that it was not necessary for her to file her written submissions as contemplated in item 15.2 of the Practice

Manual, as these written submissions were included in her application for leave to appeal.[7] The respondents contend that the provisions of item 15.2 are mandatory. Further, that the applicant has deliberately failed to comply with these provisions, despite the respondents having raised such non-compliance by the applicant in their written submissions opposing the application for leave to appeal.[8] In addition, the respondents contend that the applicant makes no case whatsoever for condonation for the failure to comply with the provisions of item 15.2 Practice Manual.[9] The respondents accordingly contend that the application for leave to appeal is unmotivated in the absence of the written submissions; in the circumstances, the application for condonation should be dismissed.

[9] It has been stated on numerous occasions by this Court, that the rules and of the Practice Manual are binding.[10] The architecture of the rules and Practice Manual underpin the ethos of the Labour Relations Act[11] (LRA), being the efficient and expeditious resolution of disputes. The repeated non-observance by the applicant of the prescripts

relating to the manner in which a review application, as well an application for leave to appeal is to be launched, is glaring.

[10] The test to succeed in an application for condonation[12] has been overstated by our Courts and need not be repeated. I am of the view that the applicant has made out no case whatsoever, for condonation for the failure to comply with the provisions of item 15.2 of the Practice Manual. The application before this Court is not one for condonation, but rather, a process obstinately justifying non-compliance with the provisions of Rule 30 and item 15 of the Practice Manual. In the circumstances, the application must fail.

[11] The conduct of the applicant has been nonchalant from inception and throughout these proceedings.[13] It has been pointed out to the applicant, that she has not complied with the relevant prescripts. Her attitude has been that of sheer obstinance and continued disregard for the provisions of the said rules and Practice Manual. It is for this reason, that I hold the view that in order to deter the applicant from persisting with such conduct, that the applicant should be visited with a costs order.

[12] Section 162(1) and (2) of the LRA provides as follows:

‘(1) The Labour Court may make an order for the payment of costs, according to the requirements of law and fairness.

(2) When deciding whether or not to order the payment of costs, the Labour Court may take into account –

(a) …

(b) the conduct of the parties –

(i) in proceeding with or defending the matter before the Court; and

(ii) during the proceedings before the Court.’

[13] In view of the conduct of the applicant in proceeding with this matter before this Court as stated above, the requirements of law and fairness indicate that an order as to costs should be made against the applicant. The respondents have been caused to oppose countless applications by the applicant where there has been disregard by the applicant of the provisions of the LRA, the rules and the Practice Manual. Countless resources, including those of this Court, have been spent in dealing with the applications by the applicant in circumstances where she has failed to comply with the provisions of the LRA, the rules and the Practice Manual and where she has taken the stance she has complied with these prescripts, whereas the

converse applies. It is alarming, to say the least, that the applicant avers that her application for leave to appeal contained

her written submissions, when, ex facie the notice of the application for leave to appeal, only the grounds of appeal are set out, and not the submissions in support thereof. In my view, a Court that is seized with an application for leave to appeal considers such application on the basis of the grounds of appeal and well as the written submissions for and against the application. The failure by the applicant to seek condonation for her failure to deliver written submissions in the application for leave to appeal is fatal to this condonation application.

[14] In the premises, the following order is made:

Order

1. The application for condonation is refused.

2. The applicant is to pay the costs of the application.

M. T. M. Phehane

Judge of the Labour Court of South Africa

[1] Founding affidavit at paras 11 and 12.

[2] Promulgated by in GN 1665 in GG17495 of 14 November 1996 (as amended).

[3] Founding affidavit at para 18.

[4] Effective 2 April 2013.

[5] Annexures “RB4”and “RB5” are annexed as to the founding affidavit, and are fax transmission receipts to the registrar of this Court.

[6] Rule 30(3A) states as follows: ‘Unless the judge from whom leave to appeal is sought otherwise directs, the parties’ respective submissions in respect of the application for leave to appeal must be- (a) in writing; and (b) delivered on or before a date fixed by the judge.’

[6] Rule 30(3A) states as follows:

‘Unless the judge from whom leave to appeal is sought otherwise directs, the parties’ respective submissions in respect of the application for leave to appeal must be-

(a) in writing; and

(b) delivered on or before a date fixed by the judge.’

[7] Founding affidavit at para 8.

[8] Answering affidavit at para 10.

[9] Answering affidavit at paras 18.4, 20 and 21.

[10] Macsteel Trading Wadeville v Francois van der Merwe N.O & Others (2019) 40 ILJ 798 (LAC); Samuels v Old Mutual Bank (2017) 38 ILJ 1790 (LAC).

[11] Act No. 66 of 1995 (as amended).

[12] Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A); Grootboom v National Prosecuting Authority & Another (2014) 35 ILJ 121 (CC).

[13] The judgment a quo, deals with the applicant’s failure to comply with the statutorily prescribed six-week period within which to launch her

review application, as contemplated in section 145(1)(a) of the LRA. The judgment in the application for leave to appeal deals with the late filing of that application and non-compliance by the applicant with the provisions of rule 30(3A) and item 15.2 of the Practice Manual. In this application, the applicant persists with her stance of not observing the provisions of rule 30(3A) read with item 15.2 of the Practice Manual in stating that it is not necessary to comply with these provisions.