South Africa: Johannesburg Labour Court, Johannesburg

REPUBLIC OF SOUTH AFRICA

Not reportable

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Case no: JR 2442/2014

In the matter between:

PORTIA MABUNDA                                                                                                Applicant

and

ESKOM HOLDINGS LTD                                                                           First Respondent

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION                                                                              Second Respondent

JOSIAS SELLO MAAKE N.O                                                                           Third Respondent

Ruling: 18 July 2016 (In Chambers)

RULING: LEAVE TO APPEAL

VAN NIEKERK J

[1] This is an application for leave to appeal against a judgment delivered by this court on 27 October 2015. The application for leave to appeal was filed on 17 November 2015 but for reasons which are not apparent,  the file was handed to me only during the course of July 2016, when I became aware of the present application. Be that as it may, the applicant applies for leave to appeal against a whole of the judgement in which the court found that she had failed to establish either that the third respondent had committed a reviewable irregularity order that the result of the proceedings under review failed to meet the reasonableness threshold.

[2] I deal first with the applicant submission that the correct legal position is that as long as a reviewable irregularity is established, the court is bound to set aside the award without any further enquiry. This submission clearly misconceives the nature of the review process. The Labour Appeal Court has on a number of occasions confirmed that the existence of one or another irregularity on the part of the commissioner is the subject of initial enquiry; the reasonableness threshold requires the court to determine whether notwithstanding the misdirection or irregularity concerned, the result is one that can nevertheless be sustained having regard to the evidence that served before the commissioner. Further, the applicant appears to construe the review ground of a misconception of the nature of the enquiry in overly broad terms. Clearly the commissioner was aware of the enquiry that he had to conduct and the parameters in which that enquiry was to be conducted. The enquiry was not, as the applicant submits, whether she had disqualified qualified candidates by determining whether she was guilty of any failure to disclose a relationship with the candidate that was her sister; the enquiry was whether the applicant’s dismissal was substantively and procedurally fair.

[3] The Labour Appeal Court has made clear in its judgement in Goldfields that the function of a review court is not to adopt a piecemeal approach to the award under review. Rather, the court must consider the totality of the evidence and establish whether the decision made by the commissioner is one that a reasonable decision maker could make on the available evidence. At paragraph 20 of its judgment, the LAC noted that all that was required was for a commissioner to give the parties a full opportunity to have their say in respect of the dispute, to identify the dispute that he or she is required to arbitrate, to understand the nature of the dispute, to deal with the substantial merits of the dispute and to arrive at a decision that a reasonable decision maker could make based on the evidence. I noted during the course the judgment that the applicant, in her founding papers, had failed to assert let alone establish that the commissioner had failed to meet this threshold. This in itself was fatal to her application. The case made by the applicant in her heads of argument and in the present application is not only a case not foreshadowed by the founding and supplementary affidavits; it is one that crosses the line that distinguishes appeals and reviews. I am not persuaded that another court would reasonably come to a different decision and the application for leave to appeal therefore stands to be dismissed.

I make the following order:

1. The application for leave to appeal is dismissed.

ANDRÉ VAN NIEKERK

JUDGE OF THE LABOUR COURT