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[2019] ZAECPEHC 56
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NEHAWU obo Hoho v CCMA and Others (PR265/18) [2019] ZAECPEHC 56 (3 September 2019)
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not
reportable
CASE
NO: PR 265/18
In
the matter between:
NEHAWU
obo KERR
HOHO Applicant
and
CCMA
First respondent
MZAMO
MAMA
N.O.
Second Respondent
SECRETARY
EC LEGISLATURE
Third Respondent
Judgement:
3 September 2019
JUDGMENT
VAN
NIEKERK J
[1]
This is an application for leave to appeal against a judgment
delivered by this court
on 9 May 2019.
[2]
The application for leave to appeal was filed in the Port Elizabeth
court on 30 May
2019. For reasons that are not apparent to me, the
application was forwarded to my associate in Johannesburg only on 31
July 2019.
A set of the submissions made by the parties was made
available to me only on the afternoon of Friday 30 August 2019. The
application
for leave to appeal was initially unopposed. The third
respondent reinstated its opposition to the application on the advice
of
senior counsel.
[3]
The relevant facts are recorded in the judgment that is the subject
of the present
application, and there is no need to repeat them here.
It is sufficient for present purposes to record that the court
dismissed
an application to review and set aside a decision by the
second respondent (the commissioner) to the effect that the penalty
of
dismissal imposed on the applicant by the third respondent was
fair.
[4]
The test to be applied is that referred to in
s 17
of the
Superior
Courts Act, 10 of 2013
.
Section 17(1)
provides:
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.
[5]
The test in the present application, accurately stated, is not one
that 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.
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. 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
& 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 & another
(C 536/15, 6 November 2015).
[6]
The grounds on which leave to appeal is sought are not clearly
expressed. What the
applicant does is to repeat the grounds for
review which formed the basis of the judgment that is the subject of
the present application.
The applicant appears to treat the review
application as an appeal – his submissions appear to suggest
that the commissioner
came to a decision that was incorrect, and that
he is entitled to relief on this basis. To the extent that the
applicant submits
that the court failed to address a series of legal
questions raised as grounds for review, there is no merit in this
ground. The
test to be applied in review proceedings is
well-established, and was applied before the court. In summary, as
the third respondent’s
counsel has observed, the applicant’s
submissions are repetitive, lack a factual and legal foundation,
demonstrate a lack
of understanding of the powers of a review court,
and fail to confine themselves to the judgment under review. The
application
stands to be dismissed.
[7]
In so far as costs are concerned, the court has a broad discretion to
make orders
for costs according to the requirements of the law and
fairness. The third respondent seeks the costs of the application,
including
the costs of two counsel. I am persuaded that the
requirements of the law and fairness are best satisfied by an order
for costs,
but that these do not extend to the costs of two counsel.
I make the following
order:
1.
The application is dismissed, with costs.
André van Niekerk
Judge
Contact
details
Applicant
(tel 043 642 2104, fax 043 642 5197)
For
the third respondent: the state attorney (043 706 5100, fax 043 722
0926, Ityani@justice.gov.za).