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THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

 

Not reportable

Case no: JR 755 /2019

 

NUM obo MPETE AND 37 OTHERS  and	Applicant
ADVOCATE XOLANI MATYOLO N.O	First Respondent
ROYAL BAFOKENG PLATINUM MINE	Second Respondent

 

Decided:      In Chambers

Judgment:   29 August 2024

This judgment was handed down electronically by circulation to the parties by email. The date for hand-down is deemed to be on 29 August 2024.

 

JUDGMENT: APPLICATION FOR LEAVE TO APPEAL

 

PRINSLOO J

 

[1]  Although there were 38 individuals represented in the application for review, only five individual applicants applied for leave to appeal against the whole of the judgment and order, delivered on 14 March 2023. The application for leave to appeal was only filed on 3 June 2024.

 

[2]  The Rules of this Court require that an application for leave to appeal must be made within 15 days of the date of the judgment against which leave to appeal is sought, except that the court may, on good cause shown, extend that period.

 

[3] The application for leave to appeal was filed outside the prescribed period and the applicants applied for condonation for the late filing thereof, which application is opposed by the Second Respondent.

 

[4]  I have considered the application for condonation and although the period of the delay is excessive and the explanation not comprehensive, I am inclined to condone the late filing of the application for leave to appeal.

 

[5]  I have considered the grounds for appeal as well as the submissions made in support and in opposition thereof. Both parties filed comprehensive submissions, which I have taken time to peruse and consider and I do not intend to repeat those herein.

 

The test for leave to appeal

 

[6]  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[1] (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.[2]

 

[7]  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.

 

[8]  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.

 

[9]  In Seatlholo and others v Chemical Energy Paper Printing Wood and Allied Workers Union and others,[3] 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).’

 

[10]  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[4] 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

 

[11]  I have considered the submissions made in support and opposition of the grounds for appeal and applying the applicable test, I am not convinced that the applicants have made out a case for leave to appeal to be granted.

 

[12]  I will deal with only one ground for leave to appeal to illustrate that there is no merit in the application. The applicants’ case is that this Court ‘erred by refusing or failing to enlarge their powers to review and set aside a private arbitration award even though there existed ground for doing so in terms of section 33(1) of the Arbitration Act and therefore failing to construe the grounds thereof reasonable strictly in relation to the private arbitration award.’

 

[13]  The submissions made by the applicants have no merit and display a lack of understanding of the difference between a review application pursued in terms of the Labour Relations Act, 66 of 1995 and a review application in terms of the provisions of the Arbitration Act and how those are to be decided by this Court.

 

[14]  I have referred to the Constitutional Court judgment of Lufuno Mphaphuli & Associates (Pty) Ltd v Andrews and Another[5]  where it was held that the values of our Constitution will not necessarily best be served by interpreting section 33(1) of the Arbitration Act in a manner that enhances the power of courts to set aside private arbitration awards. Indeed, the contrary seems to be the case. The international and comparative law considered by the Constitutional Court suggests that courts should be careful not to undermine the achievement of the goals of private arbitration by enlarging their powers of scrutiny imprudently.

 

[15]  This Court is bound by the decisions of the Constitutional Court and when those are followed and applied, it does not give rise to a decision that is open to appeal. The applicants’ complaint that this Court refused to ‘enlarge’ its powers on review in the review of a private arbitration award, has no merit and clashes with the dicta of the apex court.

 

Conclusion

 

[16]  I have considered the grounds for appeal and the submissions made and I am not convinced that the applicants have 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.

 

[17]  This matter concerns the application of established and trite principles governing the threshold for interfering with a private arbitration award on review. 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 applicants are unable to cross this hurdle.

 

[18]  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.

 

[19]  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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