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2024
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[2024] ZALCJHB 77
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Makhuduthamanga Local Municipality v South African Local Government Bargaining Council and Others (JS 575-16) [2024] ZALCJHB 77 (19 February 2024)
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
Not
Reportable
Case
no:
JS
575/16
In
the matter between:
MAKHUDUTHAMAGA
LOCAL MUNICIPALITY
Applicant
and
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
First
Respondent
COMMISSIONER
S K NTSUMELA
Second Respondent
IMATU
obo ALFRED MALEKANA
Third Respondent
Considered
in Chambers
Delivered:
This judgment was handed down electronically by circulation to the
parties' legal representatives by
email and publication on the Labour
Court’s website. The date and time for hand-down is deemed to
be on 19 February 2024.
JUDGMENT
– LEAVE TO APPEAL
MAHOMED, AJ
Introduction
[1]
This an opposed application for leave to appeal against the order
handed down by the court on 2 October 2023 save it would
appear from
the submissions on the order related to costs.
[2]
The Applicant filed its written submissions on 11 November 2023 and
opposition was filed by the Third Respondent on 20
November 2023.
[3]
I received the application in mid-January 2024.
The
grounds of appeal
[4]
Leave to appeal is sought on the following grounds:
4.1.
First
, that the
court erred in holding that the benchmark is negligence.
4.2.
Second
,
that the court erred in finding that the principle stated in the
Tuta
[1]
decision does not come to the assistance of the applicant as the
factors which this court needs to consider in granting the retrieval
application were not made out in the papers in the first instance.
4.3.
Third
, that the
court erred in finding that it would not be interest of justice
to uphold the retrieval application having regard
to the period since
dismissal, the delay since filing of the review application and the
interests of the dismissed employee in
the finality of the
proceedings.
4.4.
Fourth
, the court
erred and misdirected itself in holding that there is no case made
out for the revival/retrieval of the archived review
application in
all the circumstances.
4.5.
Fifth
, that the
court erred in finding that the application for retrieval of the
review application should be dismissed.
The
test for leave to appeal
[5]
It is trite that there is no
automatic right of appeal against a judgment of the Labour Court. 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]
[6]
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.
[7]
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) are 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)’.
[8]
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
[9]
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 that there is a reasonable prospect
that another court would come to a different
conclusion. I say this
for the following reasons.
9.1. No case is made out on the
papers for a retrieval of the review application.
9.2. The Applicant concedes that
it failed to outline the prospects of success in its application.
9.3. Gross negligence on the
part of Ratale Mahifane Attorneys does not absolve the applicant.
9.4.
The judgement in
Tuta
deals with the question of an error of law which was not raised as a
ground of appeal and only in argument. The Constitutional
Court found
that on appeal it would consider the question of an error of law or
an arguable point of law of general public importance
where the
interests of justice requires its intervention because of the risk of
an unsound conviction: "…
if
the issue can be determined on the papers as they stand and no
prejudice arises, this Court should not be precluded from considering
the matter
"
[5]
.
However, the principle in
Tuta
does not assist the applicant as the factors which this court was to
consider in granting the revival application were not made
out in the
papers in the first instance.
9.5. I must point out that the
applicant had the opportunity to justify the dismissal at
arbitration. The Commissioner was
however not satisfied that the
dismissal was fair. The structure of the legislation is that this
award of the Commissioner is to
be set aside on review (not appeal)
in limited circumstances and within a tight time frame. Arbitration
and a limited right of
review was intended to achieve expeditious
dispute resolution. The superior courts have bemoaned what has become
known as systemic
delays in the finalisation of the cases in the
field of employment law. This in time gave birth to the Practice
Manual in this
court which provides for the archival of review
applications and allows a party met with an archival the right to
seek a retrieval
of such archived review application on separate
application. This requires that a case is made out for a
retrieval/revival on motion.
The applicant failed in this regard in
that it did not make out a case on the papers. That the Third
Respondent was dismissed for
alleged corruption does not bring this
case within the remit of
Tuta
.
[10]
There is no reasonable prospect that the factual matrix would receive
a different treatment by the LAC or that there
is a legitimate
dispute on the interpretation of the law.
[11]
I would have been persuaded that there was a legitimate dispute on
the interpretation of the law had the papers before
the court
provided a basis for the advancement of such case. The papers were
not so framed.
[12]
In my view, the applicant on the whole has failed to make out a case
for leave to appeal and the application stands to
be dismissed.
[13]
In the premises, I make the following order:
Order
1.
The application for leave to appeal is dismissed.
2.
There is no order for costs.
I.I Mahomed
Acting
Judge of the Labour Court of South Africa
Submissions Drawn:
For the Applicant:
Marweshe Attorneys, Mr M Marweshe
For the 3
rd
Respondent:
IMATU, Mr. Manyikana
[1]
2023
(2) BCLR 179 (CC); [2022] ZACC 19.
[2]
See Woolworths Ltd v Matthews [1999] 3 BLLR 288 (LC).
[3]
(2016) 37 ILJ 1485 (LC) at para 3.
[4]
2013 (6) SA 520
(SCA) at para 24.
[5]
Ibid
at
para 52.