THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case no: JR 2154/21
In the matter between:
WESBANK, A DIVISION OF FIRSTRAND LIMITED Applicant
And
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION (CCMA) First Respondent
NTOMBEKHAYA SESANI N.O. Second Respondent
BHEKUMUZI GODFREY MTSHWENI Third Respondent
Decided: In Chambers
Judgment: 02 February 2024
This judgment was handed down electronically by circulation to the parties'
representatives by email. The date for hand -down is deemed to be on 02
February 2024.
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 13 December 2023.
[2] I have considered the grounds for appeal raised by the Applicant as well as the
submissions made in support and in opposition thereof and I do not intend to repeat
those herein.
2
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 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
[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 o thers 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 reasonabl e
prospect that another court might come to a different conclusion (see Daantjie
1 Act 66 of 1995, as amended.
2 See Woolworths Ltd v Matthews [1999] 3 BLLR 288 (LC).
3 (2016) 37 ILJ 1485 (LC) at para 3.
3
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 Cour t
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 Gro up
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
[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] T his matter concerns the application of established and trite principles
governing the threshold for interfering with an 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 Applicant
is unable to cross this hurdle.
4 2013 (6) SA 520 (SCA) at para 24.
4
[10] T here 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
[11] 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.
[12] 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