Umlazi Municipality v Mathenjwa and Others (D864/13) [2016] ZALCJHB 316 (30 May 2016)
The court found that the applicant failed to establish that its review application was filed within the statutory six-week period following the arbitration award. The applicant did not provide any evidence or averments to the contrary in its founding papers, and the application for condonation was withdrawn prior to...
Source-derived case information.
- Citation
- [2016] ZALCJHB 316
- Parties
- Applicant: Umlalazi Municipality; Respondent: Siphosethu Mgculisi Mathenjwa; Respondent: South African Local Government Bargaining Council; Respondent: N S Mlaba N.O.
- Court
- Labour Court Johannesburg
- Jurisdiction
- South Africa
- Case Number
- D864/13
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal Following Dismissal of Review Application
- Outcome
- Application for leave to appeal dismissed with costs.
- Judges
- D H Gush
- Legal Topics
- Unfair Dismissal, Review of Arbitration Award, Condonation, Jurisdiction, Late Filing
Source-derived case record
Summary, issues, holding and outcome
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Parties
Umlalazi Municipality
Applicant
Siphosethu Mgculisi Mathenjwa
Respondent
South African Local Government Bargaining Council
Respondent
N S Mlaba N.O.
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Review Application
Legal Issues
- 1 Whether the applicant's review application was filed within the statutory six-week period as required by section 145 of the Labour Relations Act.
- 2 Whether the applicant established grounds for condonation for the late filing of the review application.
- 3 Whether there is a reasonable prospect that another court would come to a different decision regarding jurisdiction.
Ratio Decidendi
The court found that the applicant failed to establish that its review application was filed within the statutory six-week period following the arbitration award. The applicant did not provide any evidence or averments to the contrary in its founding papers, and the application for condonation was withdrawn prior to being heard. As a result, the court concluded that it lacked jurisdiction to entertain the review application. The applicant did not demonstrate any reasonable prospect that another court would reach a different conclusion regarding the jurisdictional issue. Accordingly, the application for leave to appeal was dismissed with costs.
Court Disposition
Application for leave to appeal dismissed with costs.
Orders
- The applicant's application for leave to appeal is dismissed with costs.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, BRAAMFONTEIN
Not Reportable
Case no: D864/13
In the matter between:
UMLALAZI MUNICIPALITY
Applicant
And
SIPHOSETHU MGCULISI MATHENJWA
First Respondent
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING COUNCIL
Second Respondent
N S MLABA N.O.
Third Respondent
Heard: 30 May 201 In chambers
Delivered: 30 May 2016
JUDGMENT: LEAVE TO APPEAL
GUSH J
1. The applicant applies for leave to appeal against the judgement given on 5 August 2015 dismissing the applicant’s application with costs on the grounds that it had been filed out of time and accordingly the court had no jurisdiction to entertain the application.
2. The applicant’s application to review the arbitration award dated 20 August 2013 was filed on 7 October 2013.
3. The award of the third respondent was given pursuant to a dispute concerning an unfair dismissal referred to the second respondent by the first respondent. In the award the third respondent found that the first respondent’s dismissal was procedurally and substantively unfair.
4. In its application papers the applicant, in its founding affidavit sought to review “the award dated 20 August 2013”. In the absence of any averments to the contrary, the statutory six week period within which an application to review an arbitration award expired on 1 October 2013.
5. When the matter was heard in response to it being pointed out to the applicant that it had not established compliance with the time limits set out in section 145 the applicant simply insisted that the review application had been timeously filed.
6. On 7 August 2015 some two days after the dismissal of the applicants review application the applicant filed an application for condonation for the late filing of its review application. This application was enrolled to be heard on 27 November 2015. On 25 November 2015 the applicant withdrew the application for condonation and on 27 November 2015 the application was removed from the roll.
7. On one December 2015 the applicant filed a notice of application for leave to appeal together with an application for condonation for the late filing of the application for leave to appeal. On 9 December 2015 the applicant filed submissions in terms of rule 30 (3A).
8. Despite any evidence or any averments to the contrary and having referred only to the date of the award the applicant avers that I erred in concluding on the papers that the review application has been filed out of time.
9. The application for leave to appeal and for condonation is opposed by the first respondent.
10. The onus of establishing that the court has the necessary jurisdiction to hear an application to review an award lies with the applicant. In the absence of any thing to the contrary in the applicant’s application papers the application was filed more than six weeks after the award.
11. In the circumstances and for the reasons above I am not persuaded that there is a reasonable prospect of another court coming to a different decision.
12. I make the following order:
The applicant’s application for leave to appeal is dismissed with costs
D H Gush
Judge of the Labour Court of South Africa Johannesburg