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2024
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[2024] ZALCJHB 137
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Brokers v Uren (J763/23) [2024] ZALCJHB 137 (19 March 2024)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no: J 763/23
RUNIS
CAMPHER BROKERS
Applicant
and
DANIELLE
UREN
Respondent
Decided:
In Chambers
Judgment:
19 March 2024
This
judgment was handed down electronically by circulation to the parties
by email. The date for hand-down is deemed to be on 19
March 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 20 February 2024.
[2]
I
have considered the grounds for appeal as well as the submissions
made in support and in opposition thereof. Both parties filed
comprehensive submissions, which I have taken time to peruse and
consider and I do not intend to repeat those herein.
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 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) 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, 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).’
[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 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
[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]
I
will deal with only one ground for leave to appeal to illustrate that
there is no merit in the application. The Applicant’s
case is
that this Court erred by not exercising its discretion judicially
when awarding costs against the Applicant, when there
was no reason
to deviate from the general rule ‘
that
a losing party in labour matters should not be mulcted in costs.’
The
Applicant submitted that this Court ‘
committed
an error of law by not providing any reasons for the departure from
the rule that costs do not follow the result..’
[10]
The
submissions made by the Applicant have no merit and display a lack of
understanding of how the issue of cost is to be decided
by this
Court.
[11]
Paragraphs
29 - 37 of the judgment were dedicated only to the issue of
costs, the applicable authorities and the balance the
Court has to
strike in deciding the issue of costs. The reasons why a cost order
was awarded, are set out in paragraphs 36 and
37 of the judgment, as
a proper perusal thereof would disclose. There is no merit in the
Applicant’s submission that this
Court committed an error ‘
by
not providing any reasons’
for
a departure from the normal rule.
[12]
Furthermore,
the contempt of Court application is premised on a judgment, issued
in respect of a restraint of trade. The Labour
Appeal Court has
held
[5]
that when this court
exercises its jurisdiction under section 77(3) of the Basic
Conditions of Employment Act
[6]
,
as it did in the instance of a restraint of trade, which is a
contractual dispute, the rule established by section 162 of the
LRA
to the effect that costs do not follow the result, does not apply.
The rule to be applied in contractual disputes and litigation,
is
that costs follow the result, save in exceptional circumstances.
[13]
Be
that as it may, in deciding the issue of costs, the Court exercises a
discretion. In
MEC
for Environmental Affairs and Development Planning v Clairison’s
CC
[7]
the
Supreme Court of Appeal described the test that applies to the review
of a discretion as follows:
When
the law entrusts a functionary with a discretion it means just that:
the law gives recognition to the evaluation made by the
functionary
to whom the discretion is entrusted, and it is not open to a court to
second-guess his evaluation. The role of a court
is no more than to
ensure that the decision-maker has performed the function with which
he was entrusted.
……
.
The law remains, as we see it, that when a functionary is entrusted
with a discretion, the weight to be attached to particular
factors,
or how a particular factor affects the eventual determination of the
issue, is a matter for the functionary to decide,
and as he acts in
good faith (and reasonably and rationally) a court of law cannot
interfere.
[14]
When
the exercising of a discretion is challenged, the test that the
court, called upon to interfere with the discretion, will apply
is to
evaluate whether the decision maker acted capriciously, or upon the
wrong principle, or with bias, or whether or not the
discretion
exercised was based on substantial reasons or whether or not the
decision maker adopted an incorrect approach.
[15]
Considering
the test to be applied in challenging a discretion, the Applicant has
not made out a case to show that there is a possibility
that the
Labour Appeal Court would come to a different conclusion.
Conclusion
[16]
I
have considered the grounds for 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.
[17]
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. There 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.
[18]
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
[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.
[4]
2013 (6) SA 520
(SCA) at para 24.
[5]
See
Baise
v Mianzo Asset Management
(2019)
42
ILJ
1987 (LAC)
[6]
Act
75 of 1997, as amended.
[7]
2013 (6) SA 235
(SCA) paras 18 and 20.