South Africa: Johannesburg Labour Court, Johannesburg

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

RULING: APPLICATION FOR LEAVE TO APPEAL

VAN NIEKERK J

[1] This is an application for leave to appeal against the whole of the judgment delivered by this court on 25 January 2016 in which the court reviewed and set aside the ruling made by the first respondent on 8 July 2014 and substituted it with a finding that the referral to arbitration was dismissed for lack of jurisdiction.

[2] The test to be applied is that referred to in s 17 of the Superior Courts Act, 10 of 2013. Section 17(1) provides:

Leave to appeal may only be given where the judge or judges concerned are of the opinion that –

(a) (i) the appeal would have a reasonable prospect of success; or

(ii) there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration;

(b) the decision sought on appeal does not fall within the ambit of section 16 (2) (a); and

(c) where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties.

[3] 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. Contrary to what the applicant in the present application submits, the use of the word ‘would’ in s17 (1) (a) (i) is indicative of a raising of the threshold since previously, all that was required for the applicant to demonstrate was that there was a reasonable prospect that another court might come to a different conclusion (see Daantjie Community and others v Crocodile Valley Citrus Company (Pty) Ltd and another (75/2008) [2015] ZALCC 7 (28 July 2015). 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, the review against the commissioner’s refusal to grant the 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 (See the judgment by Davis JA in Martin & East (Pty) Ltd v NUM (2014) 35 ILJ 2399 (LAC), and also Kruger v S 2014 (1) SACR 369 (SCA) and the ruling by Steenkamp J in Oasys Innovations (Pty) Ltd v Henning & another (C 536/15, 6 November 2015)). In the former judgment, the LAC emphasised that where each matter is resolved on its own facts, and there is no novel point of law or no misinterpretation of the existing law, the matter must end in this court. This approach is consistent with the statutory purpose of expeditious dispute resolution, and the interest of both parties (and the broader society) in certainty.

[4] On the basis of the authorities set out in the court’s judgment, the principle that it is not necessary to set aside a certificate of outcome before entertaining the question of jurisdiction is now clear. The entire application for leave to appeal is based on the premise that jurisdiction is to be tested on the perspective of individual employees, members of the third respondent. The breach of the agreement in question was alleged to have been committed in 2005 – that was the evidence of the third respondent’s own witness in the proceedings before Gaylard and the gist of the correspondence addressed to the applicant by the third respondent. Of significance for the purpose of the review proceedings is the third respondent’s failure to gainsay these averments on account of its failure to file an answering affidavit. The third respondent cannot in those now be heard to say that its individual members were unaware of the existence of any of the act on which they sought to rely as an unfair labour practice. There is no substantial challenge to the court’s finding that on the third respondent’s own version, the dispute was referred out of time.

[5] In my view, there is no reasonable possibility that another court might come to a different conclusion. There is no reason why costs should not follow the result.

I make the following order:

1. The application for leave to appeal is dismissed, with costs.

ANDRÉ VAN NIEKERK

JUDGE OF THE LABOUR COURT