---

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case no: JS 787 / 14

In the matter between:

JOHANNES DIEDRICK SMITH                                                                                  Applicant

and

THE KIT KAT GROUP (PTY) LTD                                                                          Respondent

 

Heard: Considered in Chambers

Delivered: 2 December 2015

Summary:    Application for leave to appeal – no proper case for leave to appeal made out – application dismissed with costs

JUDGMENT

SNYMAN, AJ

Introduction

[1] In this matter, the applicant had brought a claim to the Labour Court in terms of Section 10 of the Employment Equity Act (‘the EEA’)[1], founded on conduct by the respondent towards the applicant which the applicant contended was discriminatory because it was based on his disability.

[2] On 23 September 2016, I handed down a detailed written judgment, in terms of which I upheld the applicant’s claim and awarded him damages and compensation.

[3] On 17 October 2016, the respondent then filed an application for leave to appeal.   

[4] Clause 15.2 of the Practice Manual provides that an application for leave to appeal will be determined by a Judge in chambers, unless the Judge directs otherwise. Both parties have filed written submissions in the application for leave to appeal, as contemplated by Rule 30(3A) and clause 15.2 of the Practice Manual, which I will consider.  I see no reason why the application for leave to appeal needs to be dealt with in open Court, and I shall therefore determine the respondent’s leave to appeal application in chambers.

Leave to appeal

[5] In deciding whether to grant leave to appeal to the Labour Appeal Court, the Labour Court must determine whether there is a reasonable prospect that another Court may come to a different conclusion to that of the Court a quo.[2] In Karbochem Sasolburg (A Division of Sentrachem Ltd) v Kriel and Others[3] the Court held:

‘I have understood that the test in deciding whether to grant leave to appeal is the traditional test. It requires a judge to ask whether there is a reasonable prospect that another court may come to a different conclusion. See North East Cape Forests v SAAPAWU and others (1997) 18 ILJ 729 (LC); [1997] 6 BLLR 705 (LC) at 710A-B; NEWU v LMK Manufacturing (Pty) Ltd and Others [1997] 7 BLLR 901 (LC) and Landman and Van Niekerk Practice in the Labour Courts (Service 1) at A-41.’

[6] In Seathlolo and Others v Chemical Energy Paper Printing Wood and Allied Workers Union and Others[4] the Court recently considered the above test for leave to appeal and held:

‘The traditional formulation of the test that is applicable in an application such as the present requires the court to determine whether there is a reasonable prospect that another court may come to a different conclusion to that reached in the judgment that is sought to be taken on appeal. … Further, this is not a test to be applied lightly — the Labour Appeal Court has recently had occasion to observe that this court ought to be cautious when leave to appeal is granted, as should the Labour Appeal Court when petitions are granted. The statutory imperative of the expeditious resolution of labour disputes necessarily requires that appeals be limited to those matters in which there is a reasonable prospect that the factual matrix could receive a different treatment or where there is some legitimate dispute on the law …’

[7] In my view, the respondent has failed to make out a case that another Court may come to a different conclusion.  In effect, the respondent is simply raising the same issues it sought to argue when this matter was heard, and considering what I have set out in detail in my judgment it is highly unlikely that any other would decide differently.  I do not propose to ventilate all these issues again.  Suffice it to say I am satisfied that no proper case has been made out for leave to appeal.

[8] The respondent persists with its primary contention that because the applicant attempted suicide which led to his condition, this should in some or other way excuse the respondent. As was the case at trial, this remains a completely untenable proposition. I cannot see how another Court can possibly decide otherwise.

[9] There can be absolutely no doubt that what happened to the applicant happened because of his physical condition and resulting disabilities.  That being the case, and for the reasons fully ventilated in my judgment, this amounted to unfair discrimination. There is simply no reasonable prospect that another Court may decide otherwise.

[10] I repeat that the irrefutable evidence remained that the respondent in fact sought to mislead the applicant and followed no process of any kind in seeking to deal with his disabilities.  In effect, and as explained in my judgment, he was hung out to dry. There is simply no reasonable prospect, on the facts, that another Court would decide otherwise.

[11] Where it comes to the damages and compensation award, the Labour Court exercises a discretion. That being the case, the basis for a higher Court interfering with the exercise of such a discretion is very limited. In Kemp t/a Centralmed v Rawlins,[5] it was held that in principle, the issue of compensation can be decided by the Court in its own judgment. The Court in Kemp further said specifically relating to compensation:[6]

‘From the above it is clear that in the case of a narrow discretion - that is a situation where the tribunal or court has available to it a number of courses from which to choose - its decision can only be interfered with by a court of appeal on very limited grounds such as where the tribunal or court-

(a)      did not exercise a judicial discretion; or

(b)      exercised its discretion capriciously; or

(c)      exercised its discretion upon a wrong principle; or

(d)      has not brought its unbiased judgment to bear on the question; or

(e)      has not acted for substantial reason (see Ex parte Neethling and others 1951 (4) SA 331 (A) at 335); or

(f)       has misconducted itself on the facts (Constitutional Court judgment in the National Coalition for Gay and Lesbian Equality case at para 11); or

(g)    reached a decision in which the result could not reasonably have been made by a court properly directing itself to all the relevant facts and principles (Constitutional Court judgment in National Coalition for Gay & Lesbian Equality at para 11).’

The respondent in its application for leave to appeal, has not made out any case based on any of the above grounds. The fact is that there is simply no reasonable prospect that another Court could decide differently. What the respondent is in fact contending for, is that a higher Court decides differently. This does not constitute a proper case for leave to appeal. In the end, one can do no better than to refer to what the Court specifically said in Coates Brothers Ltd v Shanker and Others,[7] where the Court held:

‘An appellant must show, in an appeal from a decision in a lower court, that the court a quo 'acted capriciously, or acted upon a wrong principle, or in a biased manner, or for insubstantial reasons, or committed a misdirection or an irregularity, or exercised its discretion improperly or unfairly.’

[12] I thus conclude that the respondent, as applicant in the application for leave to appeal, has shown no reasonable prospect that another Court may come to a different conclusion.

[13] As to costs, I see no reason why costs should not follow the result.

Order

[14] In the premises, I make the following order:

1.      The respondent’s application for leave to appeal is dismissed with costs.

_____________________

S Snyman

Acting Judge of the Labour Court

Appearances:

For the Applicant:                  Bowman Gilfillan Inc Attorneys

For the Respondent:             Pillay Thesigan Inc Attorneys

---

---