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IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

 

Not Reportable

Case No: JS 367/19

 

In the matter between:

ABLEWISE TRADING 47 (PTY) LTD  T/A FERROUS METALS PROCESSOR	Applicant
And
ANDRE JOHANN MINNAAR	Respondent

Decided: In Chambers

 

Delivered: 06 July 2023

 

JUDGMENT: LEAVE TO APPEAL

 

MAMABOLO, AJ

Introduction

[1]  The trial proceedings were concluded on 17 November 2022 and on 16 January 2023, judgment was handed down.

[2]  On 27 January 2023, the Applicant delivered an application for leave to appeal and written submissions were delivered on 8 February 2023. The application for leave to appeal and written submissions were accordingly, filed within the prescribed period.

[3]  In terms of clause 15.2 of the Practice Manual[1], the Respondent was required to file his written submissions within five days of receipt of the Applicant’s written submissions. Accordingly, the Respondent’s written submissions should have been filed by 15 February 2023.

[4]  The Respondent did not file any written submissions. Accordingly, the application for leave to appeal is unopposed.

[5]  The principles governing the question of whether leave to appeal should be granted or not are well-established. I, nonetheless, summarise them for convenience.

[6]  Applications for leave to appeal are governed by sections 16 and 17 of the Superior Courts Act[2]. Section 17, provides as follows:

‘(1) 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.’

[7]  The test on whether or not to grant leave to appeal is stringently applied in the light of the high threshold set by section 17 (1) of the Superior Courts Act.

[8]  The Labour Court solidified the test in Seatlholo and Others v Chemical Energy Paper Printing Wood and Allied Workers Union and Others,[3] where it held that:

‘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. As the respondents observe, the use of the word “would” in s 17(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, 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…’

[9]  I have considered the submissions in support of an application for leave to appeal. In summary, the submissions amount to nothing but a regurgitation of the argument that was presented during the trial. The argument did not advance the Applicant’s case hence, the conclusion that the retrenchment was procedurally unfair. I am still unconvinced that the argument raised has substance. Furthermore, I am unconvinced that there exists any reasonable prospect that another court could come to a different conclusion on these arguments.

[10] I, thus, conclude that the Applicant has shown no reasonable prospect that another court could come to a different conclusion and the application for leave to appeal must fail.

[11] In the premise, I make the following order:

Order

1. The Applicant’s application for leave to appeal is dismissed.

2. There is no order of costs.

 

O Mamabolo

Acting Judge of the Labour Court of South Africa

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