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THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: J 102/2023

In the matter between:

SOLOMON MAHLANGU	Applicant
and
SOUTH AFRICAN TRANSPORT AND ALLIED WORKERS UNION	Respondent

Decided: In Chambers

Judgment: 4 August 2023

This judgment was handed down electronically by circulation to the parties' representatives by email. The date for hand-down is deemed to be on 4 August 2023.

 

JUDGMENT: APPLICATION FOR LEAVE TO APPEAL

 

PRINSLOO J

[1] On 26 January 2023, this matter served before Court as an opposed urgent application.

[2] After hearing the submissions and considering the merits of the application, the following order was made:

‘1.  The application is dealt with on an urgent basis;

2. The Applicant’s suspension of 20 January 2023 is declared ultra vires the provisions of the Respondent’s constitution;

3. The Respondent is to pay the Applicant’s cost on a party and party scale.’

[3] The Respondent’s attorneys subsequently requested reasons for the order granted and those reasons were provided.

[4] Prior to the reasons being provided, the Respondent filed a notice of application for leave to appeal and reserved its rights to supplement the grounds for appeal upon receipt of the reasons. The reasons were provided to the parties and the Respondent has not supplemented its grounds for appeal, nor has it filed submissions.

[5] The Applicant’s attorneys approached this Court to issue an order in respect of the application for leave to appeal.

The filing of submissions

[6] The Respondent filed a notice of application for leave to appeal on 5 April 2023. The reasons were provided to the parties on 6 June 2023. Rule 30(3) of the Rules of the Labour Court[1] (Rules) provides that the application for leave to appeal must be made within 10 days after the date on which the reasons are given. The Respondent thus had to file its grounds for appeal or supplement the grounds for appeal that had already been filed by 21 June 2023.

[7] The Respondent had to file its submissions in support of the application for leave to appeal within 10 days of filing the application for leave to appeal. I accept that the supplemented grounds for appeal had to be filed by 21 June 2023. Rule 30 (3A) provides that the parties must file submissions in respect of the application for leave to appeal and those submissions must be filed within 10 days of filing of the application for leave to appeal.

[8] The Respondent’s submissions had to be filed by 5 July 2023. No supplementary grounds for appeal and no submissions were filed, nor was any application filed to condone the non-compliance with the Rules or the provisions of the Practice Manual of the Labour Court[2] (Practice Manual).  

[9] Paragraph 15 of the Practice Manual of the Labour Court deals with applications for leave to appeal and provides as follows in paragraph 15.2:

‘Within 10 days of the filing of the application for leave to appeal, the party seeking leave must file its submissions in terms of Rule 30(3A) and the party opposing the leave must file its submissions five days thereafter. An application for leave to appeal will be decided by the judge in Chambers on the basis of the submissions filed in terms of Rule 30 (3A), unless the judge directs that the application be heard in open court.’

[10] It is evident from the Rules and the Practice Manual that the statement of the grounds for leave to appeal is not the same as the submissions, that must be filed 10 days later. The Practice Manual specifically provides that the application for leave to appeal will be decided by the judge in chambers on the basis of the submissions filed in terms of Rule 30 (3A).

[11] This Court and the Labour Appeal Court (LAC) have considered the status of the Practice Manual[3] and held that in essence, the Manual promotes uniformity and consistency in practice and procedure and sets guidelines on standards of conduct expected of those who practise and litigate in the Labour Court and it promotes the statutory imperative of expeditious dispute resolution. The provisions of the Practice Manual are binding and should be adhered to and it is not to be adhered to or ignored by parties at their convenience.

[12] In Ndebele v South African Police Service and Another,[4] the Court was faced with an application for leave to appeal where neither party filed written submissions. The Court considered the provisions of clause 15.2 of the Practice Manual together with the judgment of Ralo v Transnet Port Terminals and Others[5] and held that –

‘[7] Considering that a Judge is entitled, in terms of the Practice Manual, to decide a leave to appeal application in chambers based on written submissions, the failure to file written submissions in these instances may be viewed to be similar to a party failing to appear in Court to argue the case, and all the consequences associated with it, which may include dismissing the application on this basis alone. But at the very least, this failure by the applicant leaves the leave to appeal application unmotivated.

[8]  In my view, the applicant’s failure to file written submissions despite the clear provisions of the Practice Manual and despite being called on to do so, should lead to the dismissal of the application for leave to appeal for this reason alone.’

[13] In Mokoena v Member of Executive Council for Education: Gauteng and another[6], the applicant, although he had filed an application for leave to appeal, failed to file written submission in accordance with rule 30(3A) read together with paragraph 15.2 of the Practice Manual. The Court (per Tlhotlhalemaje J) held that –

‘[3] In the absence of compliance with the provisions of rule 30(3A) of the Rules of this Court read with paragraph 15.2 of the Practice Manual of this Court, the purported application for leave to appeal is not properly before the Court.

[4]  Even if the Court was inclined to consider what is before it to the extent that the applicant sought leave to appeal, central to the applicant’s complaints is that on the whole, Court’s assessment of the factual matrix of the case was erroneous, and that the Court misdirected itself in various respects.

[5]  Having had regard to the grounds upon which leave to appeal is sought, and further having reflected on the judgment and order of this Court, it ought to be found that the applicant has not set out a basis or any compelling reasons upon which it can be concluded that there are reasonable prospects that the appeal would succeed. It therefore follows that the application should fail.’

[14] It is trite that there is no automatic right of appeal against a judgment of the Labour Court. This much is clear from section 166(1) of the Labour Relations Act[7] (LRA) which provides that any party to any proceedings before the Labour Court may apply for leave to appeal to the LAC against any final judgment or final order of the Labour Court. To be entitled to leave to appeal, an applicant in an application for leave to appeal must satisfy this Court that there is a reasonable prospect that another court would come to a different conclusion.[8]

[15] The test is not whether there is a possibility that another court could come to a different conclusion, the test is whether there is a reasonable prospect that another court would come to a different conclusion.

[16] It is further trite that an applicant in an application for leave to appeal must convince the court a quo that it has reasonable prospects of success on appeal. Appeals should be limited to matters where there is a reasonable prospect that the factual matrix could receive a different treatment or where there is some legitimate dispute on the law.

[17] In casu, the Respondent has not filed any submissions to set out a basis on which it can be concluded that there is a prospect that another court would come to a different conclusion. The application is unmotivated and applying the stringent test for the grant of leave to appeal, the application has to fail.

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

Order

1. The application for leave to appeal is dismissed with no order as to costs.

 

Connie Prinsloo

Judge of the Labour Court of South Africa

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