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IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: PR 192/16

In the matter between:

SOL PLAATJE MUNICIPALITY                                                                            Applicant

and

SOUTH AFRICAN LOCAL GOVERNMENT

BARGAINING COUNCIL                                                                         First Respondent

COMMISSIONER MOLOI N.O                                                            Second Respondent

COLLIN BERESFORD BOTHA                                                              Third Respondent

LIONEL FRITZ                                                                                      Fourth Respondent

Decided: In Chambers

Delivered: 31 May 2019

JUDGMENT – LEAVE TO APPEAL

MAHOSI J

[1] This is an unopposed application for leave to appeal against the whole judgment of this Honourable Court handed down on 19 February 2019 in terms of which the Court dismissed the applicant’s review application.

[2] The applicant brought this application on the grounds that the Court erred by:

2.1 Not finding that the composition of the charges, given the nature and import into employment law, did not constitute a barrier to deciding the real issue complained of during the domestic proceedings and the arbitration before the second respondent.

2.1 Failing to attach proportionate weight to the uncontested evidence presented by the witnesses who testified on behalf of the applicant during the arbitration proceedings.

2.3 Finding that the nature of the evidence adduced during the domestic proceedings effectively amended the charges.

2.4 Finding that the arbitrator was reasonable in his assessment of the evidence before him and that he did not misconceive the nature of the dispute that he was called upon to determine.

2.5 Failing to consider the seriousness of the transgression taking into account the amount of damage that resulted from the conduct of the third respondent and the confirmation by the second respondent that the second respondent was not a credible witness.

[3] The traditional test in determining whether to grant an application for leave to appeal is whether there is a reasonable prospect that another court may come to a different conclusion.^[1] In terms of section 166(1) of the Labour Relations Act (LRA),^[2] a party to proceedings before the Labour Court, may apply to the Labour Court for leave to appeal to the Labour Appeal Court (LAC) against any final judgment or final order of the Labour Court. Section 17 of the Superior Court Act,^[3] which applies to the Labour Court, regulates instances in which the appeal may be granted. Section 17(1) provides as follows:

‘Leave to appeal may only be given where the judge or judges 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 decisions 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 issue between the parties.’

[4] Section 16(2)(a) of the Superior Court Act provides as follows:

‘(i) When at the hearing of the appeal the issues are of such a nature that the decision sought will have no practical effect, the appeal may be dismissed on this ground alone.

(ii) save under exceptional circumstances, the question whether the decision would have no practical effect or result is to be determined without reference to any consideration of costs.’

[5] In Martin and East (Pty) Ltd v National Union of Mineworkers and Others,^[4] the LAC made it clear that leave to appeal is not simply there for the taking, and that this Court must be cautious in granting leave to appeal by assessing the requirement of the prospect of success. In this case, the Court stated as follows:

‘…The Labour Relations Act was designed to ensure an expeditious resolution of industrial disputes. This means that courts, particularly courts in the position of the court a quo, need to be cautious when leave to appeal is granted, as should this Court when petitions are granted. 

There are two sets of interests to consider.  There are the interests of the parties such as appellant, namely who are entitled to have their rights vindicated, if there is a reasonable prospect that another court might come to a different conclusion. There are also the rights of employees who land up in a legal “no-man’s-land” and have to wait years for an appeal (or two) to be prosecuted. 

This was a case which should have ended in the labour court.  This matter should not have come to this court. It stood to be resolved on its own facts.  There is no novel point of law to be determined nor did the Court a quo misinterpret existing law. There was no incorrect application of the facts; in particular the assessment of the factual justification for the dismissals/alternative sanctions.

I would urge labour courts in future to take great care in ensuring a balance between expeditious resolution of a dispute and the rights of the party which has lost. If there is a reasonable prospect that the factual matrix could receive a different treatment or there is a legitimate dispute on the law that is different.  But this kind of case should not reappear continuously in courts on appeal after appeal, subverting a key purpose of the Act, namely the expeditious resolution of labour disputes.’

[6] Having had regard to the applicant’s submissions, I am not persuaded that there are reasonable prospects of a successful appeal. As such, I am of the view that this application is without merit and must be dismissed.

[7] With regard to costs, taking into account the requirements of law and equity, I am of the view that this is a matter in which there should be no order as to costs.

[8] Accordingly, I make the following order:

 

Order

1. The application for leave to appeal is dismissed.

2. There is no order as to costs.

 

 

__________________

D. Mahosi

Judge of the Labour Court of South Africa

 

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