THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable
Case no: JR 2319 /2021
In the matter between:
RATHIPE TRAIVERSE MOLUPE		      Applicant

and

SIBANYE GOLD LIMITED				                                       Respondent

Decided: 	In Chambers

Judgment:	15 November 2023

This judgment was handed down electronically by circulation to the parties by email. The date for hand-down is deemed to be on 15 November 2023. 

JUDGMENT: APPLICATION FOR LEAVE TO APPEAL

PRINSLOO J
[1]	The Applicant applied for leave to appeal against the whole of the judgment and order, delivered on 23 May 2023. Although it appears that the application for leave to appeal was served on the Respondent on an earlier date, the application for leave to appeal, the service affidavit and submissions filed by the Applicant have a Court stamp dated 6 November 2023. This application was brought to my attention on 13 November 2023.

[2]	I have considered the grounds for appeal as well as the submissions made in support and in opposition thereof and I do not intend to repeat those herein. 

The test for leave to appeal
[3]	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 (LRA) which provides that any party to any proceedings before the Labour Court may apply for leave to appeal to the Labour Appeal Court (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. 

[4]	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. 

[5]	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.

[6]	In Seatlholo and others v Chemical Energy Paper Printing Wood and Allied Workers Union and others, this Court confirmed that the test applicable in applications for leave to appeal is stringent and held as follows: 

‘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 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, 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 and 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 and another (C 536/15, 6 November 2015).’

[7]	In deciding this application for leave to appeal, I am also guided by the dicta of the Supreme Court of Appeal where it held in Dexgroup (Pty) Ltd v Trustco Group International (Pty) Ltd and others that:

‘…The need to obtain leave to appeal is a valuable tool in ensuring that scarce judicial resources are not spent on appeals that lack merit. It should in this case have been deployed by refusing leave to appeal.’

This application
[8]	I have considered the submissions made in support of the grounds for appeal and applying the applicable test, I am not convinced that the Applicant has made out a case for leave to appeal to be granted. 

[9]	This matter concerned exceptions raised by the Respondent and after considering the submissions and the applicable legal prescripts, this Court found inter alia that the Applicant, in pursuing a claim in terms of section 9 of the Employment Equity Act (EEA) he has not identified or pleaded any ground for discrimination, that the Applicant seeks ‘unconditional reinstatement and compensation’ whereas section 10 of the EEA provides specifically that disputes referred under Chapter II of the EEA exclude unfair dismissal disputes  and that the Applicant’s claim arising from the EEA had not been conciliated by the CCMA, as required by section 10(5) of the EEA. Furthermore, the Applicant had referred an unfair dismissal dispute to the CCMA in which the arbitrator found that the CCMA lacked jurisdiction because the Applicant failed to prove the existence of an employment relationship between him and the Respondent, whereas the Applicant’s ‘amended statement of claim’ is premised on the existence and repudiation of an employment contract and he seeks reinstatement ‘to active duty’ and payment of 21 months’ back pay when his first statement of case, which had not been withdrawn or amended, is premised on section 9 of the EEA.  

[10]	This Court only dealt with the exceptions raised and did not decide or determine the merits of the Applicant’s claims. The submissions made by the Applicant in his application for leave to appeal do not speak to the exceptions that were raised or this Court’s findings in determining the exception. The Applicant made no submissions nor did he raise any grounds for appeal to disturb this Court’s findings, as alluded to supra and as such he failed to provide a conceivable basis for the test to be applied in applications for leave to appeal to be met.

[11]	In fact, the submissions made by the Applicant display a lack of understanding of what the issues were to be decided by this Court in exception proceedings. This is illustrated inter alia by the following submission: 

“Effect of a granted motion in limine are as follows, when a judge grants a motion in limine, the order effectively precludes all reference to the inadmissible evidence. In this case there is no tested evidence rather a hearsay or gossip by the Respondent that there is no relationship between myself and the company. A party who fails to comply with the order granted in the motion in limine may be held in contempt of court. In this case there is no order against any evidence whatsoever. In the larger picture, however, failure to comply with such an order may end in dismissal of the party’s case. My Lady Judge C Prinsloo has already placed a cart in front of the horse to struck off the matter from the roll whereas there was no need to even entertain the motion which lacks substance before the pre-trial. In the matter between Cook4Life CC v CCMA and other such a motion of limine (sic) was dismissed question (sic) the jurisdictional ruling of the CCMA by Cook4Life CC.”    

[12]	Paragraph 34 of the judgment reads as follows:

[34]	The ‘amended statement of claim’ is premised on the existence and repudiation of an employment contract, when there is a ruling which found that the Applicant was unable to show that he was indeed an employee. The ruling which found that the Applicant was not an employee of the Respondent and that no employment relationship existed, was not reviewed or set aside and the Applicant cannot litigate as if such a ruling does not exist.

[13]	In his submissions, the Applicant made specific reference to it, as follows:

“It is very difficult to accept the notion the My Lady in paragraph [34] fails to see the evidence before here (sic) as enough or she is rather discriminating me on the basis of race.

[14]	Paragraph 34 of the judgment made reference to a CCMA ruling, which found that the Applicant could not prove that he was an employee of the Respondent. It is not a finding made by this Court, but a finding by a tribunal who considered the facts and evidence, and it is a finding the Applicant took no issue with and which he left undistrurbed. 

[15]	The Applicant’s averments against this Court regarding racial discrimination is unfounded and contemptuous and indicative of the fact that the Applicant is prepared to make harmful statements, without a consideration of the facts. 

[16]	There is no novel issue, nothing unique or any legitimate dispute about the applicable legal principles involved. In short: there is no legitimate dispute on the law and the Applicant is unable to cross this hurdle. There is also not a reasonable prospect that the factual matrix would receive a different treatment by the LAC or that the LAC would come to a different conclusion. 

Conclusion
[17]	I have considered the submissions made in the application for leave to appeal and applying the applicable test, I am not convinced that the Applicant has made out a case that passed the test and the high threshold of a reasonable prospect that another court would come to a different conclusion.

[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