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[2018] ZAGPJHC 581
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NEHAWU obo Malatji v Minister of Justice and Constitutional Development and Another (J1552/14) [2018] ZAGPJHC 581 (9 November 2018)
IN
THE HIGH COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case no:
J1552/14
In the matter
between:
NEHAWU obo DANIEL
MASILU MALATJI
Applicant
and
MINISTER OF
JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT First
Respondent
DEPARTMENT OF
JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
Second Respondent
Considered: In
chambers
Delivered:
9 November 2018
JUDGMENT – LEAVE TO APPEAL
SEDILE, AJ
[1] The respondents
have launched an application for leave to appeal against the judgment
and order granted in respect of the applicant’s
notice to
compel application which was delivered on 24 August 2018. The
application is opposed by the NEHAWU obo Malatji.
[2] The principles
where leave to appeal is sought are trite. The enquiry is whether
there is a reasonable prospect that another
court (in this case, the
Labour Appeal Court) may come to a different conclusion to that
reached in the judgment that is sought
to be taken on appeal. In
explaining what ‘reasonable prospects’ entail, the
Supreme Court of Appeal in
S v Smith
[1]
held thus:
‘
What
the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law that a court
of appeal could reasonably arrive at a conclusion different to that
of the trial court. In order to succeed, therefore, the
appellant must convince this court on proper grounds that he has
prospects of succeed on appeal and that those prospects are not
remote but have realistic chance of succeeding. More is
required to be established than that there is a mere possibility
of
success, that the case is arguable on appeal or that the case cannot
be categorised as hopeless. There must, in other
words, be a
sound, rational basis for the conclusion that there are prospects of
success an appeal’.
[3] The threshold or
test for the granting of leave to appeal is stringent as further
demonstrated in
Martin and East (Pty) Ltd v NUM
[2]
,
where it was emphasised that this Court ought to be cautious when
granting leave to appeal, as the statutory imperative of expeditious
resolution of labour disputes necessitates that appeals be limited to
those matters in which there is a reasonable prospect that
the
factual matrix could receive different treatment or where there is
some legitimate dispute on the law.
[4] I have had
regard to the submissions made on behalf of the applicant and in
particular, authorities referred therein. Having
further reflected on
my judgment, I hold the view that the grounds upon which leave to
appeal is sought and the arguments raised
in that regard were
sufficiently dealt with in the judgment, and it would thus not be
necessary to address each and every ground.
[5] Based on the
facts and the law as addressed in the judgment, the grounds upon
which leave to appeal is sought and submissions
made on behalf of the
respondents, I am thus not convinced that there are compelling
reasons or sound and/or rational basis for
a conclusion to be reached
that the applicant has prospects of success on appeal.
[6] I have further
had regard to the requirements of law and fairness in regard to an
award of costs, and again hold the view that
any costs order is not
warranted in this case.
[7] Accordingly, the
following order is made:
Order
1. The application
for leave to appeal is dismissed;
2. There is no order
as to costs.
P.
Sedile
Acting
Judge of the Labour Court of South Africa
[1]
2012 (1) SACR 567
(SCA) (15 March 2011) at para 17.
[2]
(2014) 35 ILJ 2399 (LAC); See also Seatlholo and Others v Chemical
Energy Paper Printing Wood and Allied Workers Union and Others
(2016) 37 ILJ 1485 (LC)