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[2022] ZAGPJHC 75
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Mokotedi v Sishen Iron Ore Company (Pty) Ltd (JS868/17) [2022] ZAGPJHC 75 (7 March 2022)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
case
no:
JS868/17
In
the matter between:
JOHN
PANTI
MOKOTEDI
Applicant
and
SISHEN
IRON ORE COMPANY (PTY) LTD
Respondent
Heard
:
7 March 2022 (In Chambers)
Delivered
:
8 March 2022 (
via
email to the parties)
Summary:
Application for leave to appeal – absolution from the
instance constitutes a final order of the Labour Court thus
appealable.
The application does not meet the requirements of
section 17 (1) (a) of the Superior Courts Act, 2013. Held: (1) The
application
for leave to appeal is dismissed with no order as to
costs.
JUDGMENT
- LEAVE TO APPEAL
MOSHOANA,
J
Introduction
[1]
On 08 February 2022, this Court handed down an
ex tempore
judgment in terms of which it granted the respondent an application
for an absolution from the instance, due to the insufficiency
of
evidence. The applicant is displeased with the judgment and now seeks
leave to appeal against the whole judgment. The application
stands
opposed.
Evaluation
[2]
The
test whether leave to appeal should be granted remains that spelled
out in section 17(1) of the Superior Courts Act
[1]
.
In terms of section 17 (1) (a), there are two bases upon which a
judge may grant leave to appeal; namely; (a) where the appeal
would
have reasonable prospects of success; or (b) where there is some
compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration.
[3]
Before this Court can consider whether the
application meets the test, it must consider whether the order can be
re-considered or
is appealable.
Is
the order appealable?
[4]
Section 173 (1) (a) of the LRA provides that
subject to the Constitution and despite any other law, the Labour
Appeal Court has
exclusive jurisdiction - to hear and determine all
appeals against the final judgments and final orders of the Labour
Court. It
is perspicuous from the provisions of the section that an
appeal lies only against final orders.
[5]
Is
absolution from the instance a final order? This question seem to
have been definitively settled by the Supreme Court Appeal
in
Liberty
Group Limited t/a Liberty Life v K and D Marketing
[2]
,
where the learned Ledwaba AJA, writing for the majority, held:
‘
[14]
The dictum of
Steytler
cited
above makes it clear that it is established practice that
a
decision of absolution from the instance in a trial has the effect of
a definitive sentence.
Simply put, a
decision on the sufficiency of evidence led in that suit, by way of
an order of an absolution from the instance, has
a
definitive
effect and is susceptible to appeal
.
The Court is
functus officio
and has no power or jurisdiction
to
hear any further evidence in relation thereto.
[15]
…The short answer to that proposition is that
Liberty
had its day in court. That it provided insufficient evidence to
sustain its case is entirely its own fault…”
[6]
When regard is had to the grounds submitted by Mr
Mokotedi, this Court observes traces of a plea of re-consideration.
The very first
ground is couched in the following manner:
“
Applicant’s plea with
Honourable Justice Moshoana to
re-consider
evidence merits
brought to him
on his judgement on the case as on the 07-08 January 2022
”
.
Unfortunately, for Mr Mokotedi, this Court cannot reconsider.
Does
the application meet the test?
[7]
As submitted by the respondent, the application
does not meet the test for leave to appeal as enshrined in
section 17
of the
Superior Courts Act, 2013
. It is unnecessary to take stock of
the grounds punted for by Mr Mokotedi. There is no certainty that the
LAC may come to a different
conclusion.
[8]
Again, this Court implores Mr Mokotedi to seek a
proper legal advice before it is too late.
Order
[9]
In the results, I make the following order:
1.
The application for leave to appeal is hereby
refused.
2.
There is no order as to costs.
GN Moshoana
Judge
of the Labour Court of South Africa
Appearances
None
[1]
Act 10 of 2013.
See
Seathlolo and Another v CEPPWAWU and others
[2016] 37 ILJ 1485 (LC)
[2]
(Case no 1290/18)
[2020] ZASCA 41
(20 April 2020)