IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT CAPE TOWN

NOT REPORTABLE

CASE NUMBER: C81/07
In the matter between:
JAMAFO obo FRANK NERO                                                              Applicant

and

PICK ’N PAY (PTY) LTD	LTD                                                First Respondent

VAN STADEN NO, PIET                                                     Second Respondent

COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION                                      Third Respondent

_______________________________________________________________
JUDGEMENT
_______________________________________________________________

NGALWANA AJ

[1]	This is an application for leave to appeal against a judgement of this Court dated 5 December 2008 in which the applicant’s condonation application for the late filing of a review application was dismissed on the basis of inadequate explanation for the delay.

[2]	The first respondent abides by this Court’s decision. 

[3]	On review, the applicant blamed its late application on the late receipt of a rescission ruling. It had chosen to proceed by way of section 144 of the Labour Relations Act, 66 of 1995 (and not by way of review under section 145) to have the award of the second respondent rescinded (in contra-distinction to set aside on review). This was an irrelevant consideration because it was not the rescission ruling that was sought to be set aside on review but rather the arbitration award.

[4]	Now the applicant’s legal representative blames the union representative for following a process that he himself says “was doomed to failure as it did not raise any recognised grounds under section 144”. This unfavourable post mortem notwithstanding, he then submits that because this was “a step that a reasonable litigant might take”, the union representative’s procedural indiscretion should not be a basis upon which to punish the litigant. 

[5]	Well, quite apart from the post mortem not justifying the conclusion now being advanced, the Appellate Division (as it then was) held a different view. In Fehr v Gordon and Rennie NNO and Another 1988 (1) SA 125 (A) at 138A-D, Corbett JA (as he then was) said an election made on the advice of one’s attorney cannot validly be vitiated by claims of a mistake on the part of the litigant. This decision was followed in IMATU and Others v MEC: Environmental Affairs, Developmental Social Welfare and Health, Northern Cape Province and Others 1999 (4) SA 267 (NC) at 281G-I where the Court said: “I am afraid, the law is clear that a party is bound by his election even if it is based on wrong legal advice”. I am not aware of any subsequent Appeal Court decision that deviates from the Fehr decision. The applicant cannot, in failing to bring a review application within the period prescribed by the Labour Relations Act for good reasons that have been documented in numerous reported judgements, validly blame his legal representative for following a process that was, by his own attorney’s reckoning, “doomed to failure”.

[6]	Having considered the applicant’s submissions in this application, I am satisfied that troubling the Higher Court with this appeal would be unpardonably churlish. 

[7]	The application for leave to appeal is dismissed as there are no reasonable prospects of a higher Court reaching a conclusion that is different from that reached by this Court on the submissions made to it.

____________________

Ngalwana AJ

Appearances

For the applicant:		Mr J Whyte
Instructed by:		Cheadle Thompson and Haysom

For the first respondent:	Mr A Steenkamp
Instructed by:		Edward Nathan Sonnenberg Inc

Date of judgment:		05 March 2009