Cashbuild (Pty) Ltd v Poto

• Jurisdiction: South Africa
• Judge: Waglay JP and Savage AJA and Molefe AJA
• Judgment Date: 02 March 2021
• Docket Number: JA111/2019
• Hearing Date: 25 February 2021
• Court: Labour Appeal Court
• Citation: 2021 JDR 0480 (LAC)

Savage AJA:

[1]

This appeal, with the leave of the Court a quo, is against the judgment and order of the Labour Court (Lekale AJ) handed down on 16 February 2018, in terms of which the review application brought by the appellant, Cashbuild (Pty) Ltd, was dismissed with costs.

[2]

The third respondent, Mr Steven Nkomo ('the employee') was employed as a sales coordinator at the appellant's Moloto branch, reporting to the branch manager, Ms Patricia Mokoena. He was dismissed from his employment on 5 November 2014 for gross insubordination after he failed to comply with Ms Mokoena's instruction not to comply with a customer's request to collect roof tiles which she had purchased. When Ms Mokoena confronted the employee he informed her that the customer had insulted him and he had decided to do what was necessary to make the customer happy.

[3]

Aggrieved with his dismissal, the employee referred an unfair dismissal dispute to the second respondent, the Commission for Conciliation Mediation and Arbitration ('the CCMA'). In the arbitration award dated 20 March 2015, the first respondent ('the commissioner') found the employee's dismissal substantively unfair. The employee was retrospectively reinstated into his employment with the appellant with a final written warning for insubordination valid until 4 November 2015.

[4]

After the Labour Court on review found the commissioner's decision to be reasonable and dismissed the review application with costs, on 5 March 2018 the appellant filed an application for leave to appeal. Leave to appeal was granted on 16 July 2018. Yet, the appellant filed its notice of appeal on 15 November 2019, fifteen months late, with the appeal record filed thereafter on 14 February 2020.

[5]

Rule 5(1) of the Rules of the Labour Appeal Court Rules ('the Rules') requires an appellant to deliver a notice of appeal within fifteen (15) days of leave to appeal being granted 'or any longer period that may be allowed by the court, on good cause shown'. Rule 5(8) requires that:

2021 JDR 0480 p3

Savage AJA

'The record must be delivered within 60 days of the date of the order granting leave to appeal, unless the appeal is noted after a successful petition for leave to appeal....'

[6]

Since the appellant failed to lodge the record of appeal within the period prescribed in Rule 5(8), without an extension of time having been granted, the appellant is deemed, in terms of Rule 5(17), [1] to have withdrawn the appeal.

[7]

The appellant consequently applied for the reinstatement of the appeal and condonation for the late filing of the application for leave to appeal and the appeal record. The employee opposed both applications. The appellant claimed to have been unaware that its application for leave to appeal had been granted. In his affidavit in support of the applications for reinstatement and condonation, the appellant's attorney, Mr Sean Snyman, stated that when an unnamed individual from his firm first followed up with the registrar's office, the file was "still with the Judge" and that in a subsequent follow up in September 2018, the file could not be found. In January...