In chambers in terms of Rule 5 of the Rules of the Supreme Court 1964.
The applicants are appearing before a judge of this Court for the third time, their earlier applications having been dismissed on procedural grounds.
Essentially, in this, and the previous two applications, the applicants are requesting this Court to give to them leave, which they perceive to have been denied by the Labour Court, to file a belated appeal against their dismissal from employment with the respondent.
In this quest, the two have made tracks back and forth between the Labour Court and this Court, with the result that the matter is now hopelessly entangled in procedural niceties.
It became evident to me that this 'tangle' had to be unravelled first before a way forward could be ascertained. This is particularly so given that the legally unrepresented, but determined, applicants are pressing to have their day in court, albeit, they complicated matters further by filing lengthy and repetitive submissions with each application they brought before both the courts.
Accordingly, after hearing the parties, and, in order to enable me to properly determine the matter, I directed them to re-construct the record and arrange all the applications, and other papers, in the order they had been filed. I indicated I would then peruse the record and give any directions that may be necessary to unlock the process and have the matter move forward.
This would, at the same time, point the applicants to any options that may be open to them in terms of the way forward.
Chronicled below, in conveniently numbered paragraphs, are the relevant facts of the matter, as well as the sequence of events, in so far as I have been able to make them out. I have interspersed the narration/analysis with relevant observations or findings of my own;
1. The applicants are former employees of the respondent; they were dismissed on misconduct charges of theft and fraud in 2009.
2. Having unsuccessfully pursued all internal remedies for redress, they appealed to the Labour Court, on the 30th of October 2009 against their dismissal. In a detailed judgment, the Labour Court dismissed the appeal having found that the two had been properly charged, convicted, and dismissed.
3. The two resolved to appeal to this court but failed to apply to the Labour Court for leave to appeal within the 30-day period which is stipulated in that court's rules.
This, in my view, is where their problems started.3. The two resolved to appeal to this court but failed to apply to the Labour Court for leave to appeal within the 30-day period which is stipulated in that court's rules.
This, in my view, is where their problems started.
4. On the 16th of March 2010, some sixty-six days beyond the stipulated time limits, the applicants filed an application in the Labour Court titled “APPLICATION FOR LEAVE TO APPEAL TO THE SUPREME COURT.”
The relief sought, according to their draft order, mirrored the same title.
A look at the founding affidavit shows that the applicants appreciated the fact that their application would be filed out of time, and that, therefore, they would need to secure condonation of the late filing of the application.
This is evidenced by paragraph (viii) of the founding affidavit, which reads as follows;
“I humbly urge this Honourable Court to condone the delay in this application for leave to appeal to the Supreme Court on the basis that:
(i) I travelled to my rural home ending up in too much delay of noting an appeal (sic).
(ii) As a self-actor, I took too long to find the Labour Court Rules that I can prepare my application.” (sic)
The request for condonation, apart from not being reflected in the title of the application, was, in addition, not incorporated into the draft order.
As indicated later in this judgment, the Judge a quo took the view, that, no application for condonation was before the court.
5. Nevertheless, the Judge issued the following order on the 23rd of June 2010;
“The application for leave to appeal to the Supreme Court be and is hereby denied on the basis that it was out of time and the reason for the delay was not a reasonable one.”…,.
I find this order to be incomprehensible in a number of respects;
(a) Having taken the view that there was no proper application for condonation of the late application for leave to appeal to the Supreme Court, it is not clear why or how the court could have proceeded to 'dismiss' the application for leave to appeal to the Supreme Court.
(b) The reasons given for the 'dismissal' of the application for leave to appeal to the Supreme Court are reasons properly associated with an application for condonation of failure to comply with the rules of the court;
(c) While the reasons might have suggested that the Labour Court had in fact entertained an application for condonation of the late filing of the application for leave to appeal, the court dispelled this notion by specifically stating in its order, that, it had dismissed the application for leave to appeal to the Supreme Court; and
(d) Even were it to be taken that the court entertained the application for condonation, the absence of an order specifically granting such condonation establishes otherwise.
6. What is evident, though, is that the Labour Court did not consider the merits of the application for leave to appeal to the Supreme Court. Indeed, it could not have properly done so without first condoning the late filing of such an application. The applicants were barred, and, at that point in time, out of court.
The applicants should have filed a composite application;
(a) For condonation of the late filing of the application for leave to appeal; and
(b) For leave to appeal to the Supreme Court.
Because they did not do so, the application for leave to appeal to the Supreme Court was not properly before the Labour Court.
7. I am of the firm view, that, instead of dismissing the application for leave to appeal to the Supreme Court for the reasons it gave, the Labour Court should have properly struck the application off the roll.
It is also my opinion, that, since a court cannot dismiss what is not before it, the Labour Court's order of 23 June 2010, was incompetent.
8. Had the Labour Court struck the matter of the roll, the applicants would most likely have been alerted to the need to file a proper application with the same court, for condonation, together with one for leave to appeal to the Supreme Court.
9. As this did not happen, the applicants, who felt aggrieved by the decision 'dismissing' their application for leave to appeal, and had no reason to believe the order to be incompetent, mistakenly, but understandably (being legally unrepresented), filed a chamber application before this court on the 19th of July 2010, under case number SC175/10.
They sought the leave of a Judge to appeal to it (purportedly) in terms of section 92F(3) of the Labour Court Act (“the Act”).
10. The application was dismissed in chambers by GARWE JA on the 14th of December 2010, without considering the merits thereof. This was on the basis, that, this Court could not consider the application for leave to appeal to it before:
(i) Condonation for the late filing of that application in the Labour Court had been obtained; and
(ii) The leave of the Labour Court had been properly sought and denied.
11. After the dismissal of their application by a Judge of this Court, significantly, not on the merits, as indicated in paragraph 9, the applicants approached the Labour Court on the 21st of December 2010 and filed a composite application for -
(i) Condonation of the late filing of the application for leave to appeal to the Supreme Court against the Labour Court's order of 30 October 2009; and
(ii) Leave to appeal to the Supreme Court.
12. On the 21st of February 2011, the Labour Court made a ruling that it could not 'plough the same road' as it had already made a decision on that particular issue. It made the following order;
“1. The Court has dealt with the application for leave to appeal and dismissed it on 23 June 2010;
2. The court is thus functus officio and must dismiss the present application;
3. The application is accordingly dismissed.”…,.
13. It is my considered view, based on the foregoing analysis, that the Labour Court was misguided in its view that it had already heard and determined the application for leave to appeal to this Court. As stated above, and despite the wording of its order of 23 June 2010, the court had NOT properly heard nor determined the application for leave to appeal against its decision of 30 October 2009.
14. In stating this, I am fully cognisant of the fact, that, I am not sitting as an Appeal Court to consider this matter.
Accordingly, as a single judge in chambers, I cannot make, and indeed, should not be taken to be making, a final pronunciation on the matter.
Such a task would properly be within the preview of an appeal bench of this Court.
With this in mind, I nevertheless hazard to express the view, that, contrary to its finding, the Labour Court was, in effect, not functus officio and should properly have entertained the application filed by the applicants on 21 December 2010.
It seems to me, that, the Labour Court judge failed to appreciate the fact, that, the applicant's seemingly repeated filing of the same application was traceable, in part, to the court's failure from the onset (i.e. 16 March, 2010) to indicate to the applicants (by striking the matter off the roll) that they could not apply to it for leave to appeal to the Supreme Court without first seeking its condonation of the late filing of such application.
That the court fully appreciated that this was the correct sequence of events to be followed, is evident from the following observations contained in the judge's reasons for the decision in the question;
“The reason (for dismissing the application of 21 December 2010, for condonation and for leave to appeal) are that on 23 June 2010 an application for leave to appeal was dismissed because it was filed out of time. At that time, no application for condonation was made….,.
The two applications that were filed sought to resuscitate a matter that had been dealt with to finality - at least before this Court. Should I condone the application for leave that has already been denied? I could not consider the second application for leave to appeal because I had already denied it. It was water under the bridge. I could not deal with the application because it was ill timed. It ought to have preceded the first application for leave which I had already dismissed.”
15. A couple of pertinent observations can be made from this rather unclear reasoning.
(i) Firstly, the judge a quo properly realised that the first application by the appellants needed to be preceded by an application for condonation of its late filing. The learned judge, however, then fell into the error of not fully appreciating the implication of this default vis a vis the application for leave to appeal to the Supreme Court.
This was that, absent an application for condonation of late filing of the application for leave to appeal, there was nothing before the court to dismiss.
The later application could not stand on its own, being premised on nothing.
(ii) Secondly, since the dismissal in question was, in my view, incompetent, there would have been nothing to prevent the court from hearing the two applications.
Thus, nothing was dealt with 'to finality'.
16. Be that as it may, the applicants did not, as they may have done, take the requisite steps to appeal to this Court against the Labour Court's finding that;
(i) It was functus officio; and
(ii) That, it had already dealt with the application for leave to appeal to the Supreme Court.
17. The applicants, instead, came back to this court seeking an order for leave to appeal against the court a quo's decision on the main dispute.
18. Needless to say, this application was repetitive and therefore improper.
The ground upon which the first application had been dismissed, that is, absence of condonation by the Labour Court, was still in point.
19. The application was heard and dismissed by GARWE JA on 17 November 2011. As a mark of its displeasure, this Court ordered that the applicants pay costs on the higher scale.
20. To the extent that this court had earlier dismissed the same application, albeit, and also without considering the merits, it could have been argued that the matter was res judicata and that this court was functus officio.
The judge, however, did not make a pronouncement nor issue an order to this effect.
21. The appellants apparently felt they could still pursue the dispute, and, in a manner suggestive of their now being totally confused and entangled in a true web of procedural technicalities, the relentless applicants went back to the Labour Court on 7 December 2011 and filed an application with this somewhat confusing title;
“CHAMBER APPLICATION FOR CONDONATION FOR LATE FILING OF AN APPLICATION FOR LEAVE TO APPEAL AGAINST THE DENIAL OF CONDONATION AND APPLICATION FOR LEAVE TO APPEAL AGAINST THE DENIAL OF CONDONATION FOR LEAVE TO APPEAL TO THE SUPREME COURT”
What immediately becomes evident from this title is the fact, that, the application in question was premised on the view, that, an application for condonation of the late filing of an application for leave to appeal to the Supreme Court had been heard and refused by the Labour Court.
The opposite was in fact the case.
The learned judge, in the excerpt from her judgment that is cited in paragraph 14 above, made it very clear why she was not going to entertain such an application. Nor did she, in the end, do so.
The application was therefore misguided.
22. Having, again, found no satisfaction from the Labour Court, the applicants have now, yet again, approached this Court with this application, which is no less misguided than the last one they made before the Labour Court (see above).
The application brings nothing new to this Court unless it is to demonstrate the applicants sheer determination to pursue the matter to what they perceive to be its logical conclusion - whatever pitfalls may stand in their way.
As this Court has entertained the same matter several times, it is my view, that, the court is now functus officio.
The dispute has gone round in circles for a period of over five years and there must be finality to litigation.
The application now before me is, in any case, not sustainable in its current form.
Accordingly, the application is dismissed with costs.
