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2024
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[2024] ZALCJHB 159
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Majola v General Public Service Sector Bargaining Council and Others (JR2581/21) [2024] ZALCJHB 159 (9 April 2024)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR 2581/21
In
the matter between:
BONGA
BALDWIN
MAJOLA
Applicant
and
GENERAL
PUBLIC SERVICE SECTOR
BARGAINING
COUNCIL
First Respondent
ARBITRATOR
E
MAREE
Second Respondent
GAUTENG
DEPARTMENT OF ROADS AND TRANSPORT
Third Respondent
Decided:
In chambers
Delivered:
9 April 2024
JUDGMENT:
APPLICATION
FOR LEAVE TO APPEAL
RALEFATANE
AJ
Introduction
[1]
This
is an application for leave to appeal against the whole of the
judgment and order issued by this Court on 13 October 2023 where
the
Applicant’s application seeking to review two rulings, the
condonation ruling (dated 19 February 2021) and rescission
ruling
(dated 5 June 202) under case reference number GPBC 1594/2020, issued
by the second respondent as the arbitrator under the
auspices of the
first respondent was dismissed by this Court.
[2]
The
applicant’s application for leave to appeal was out of time
therefore, an application for condonation was made.
[3]
On
that score, there are two applications by the applicant before this
Court, namely, an application for condonation for the late
filing of
the leave to appeal and an application for leave to appeal.
[4]
This
Court will first deal with the condonation application for the late
filing of the application for leave to appeal and, depending
on the
outcome of the condonation application, the Court will either not
proceed to deal with the application for leave to appeal
should the
condonation application fail, or to deal with it should the
condonation application succeed.
Summary
of the facts
[5]
The
applicant was dismissed by the third respondent allegedly for the
protected disclosure he made regarding corruption that was
happening
at the third respondent’s workplace.
[6]
Fast
forward, by the time the applicant referred the alleged unfair
dismissal dispute to the first respondent for relief, the referral
was already out of time and therefore required an application for
condonation
[1]
which was refused by the first respondent and followed by a
rescission
[2]
application which had also failed.
[7]
Subsequently,
the applicant applied to this Court for the review of both the
condonation and rescission rulings and the applications
failed before
this Court hence this application for leave to appeal.
Condonation
application
[8]
The
applicant’s application for leave to appeal was four days out
of time. The application for condonation was not opposed.
[9]
In
considering whether to grant condonation, there are principles set
out in countless decisions of our courts.
[10]
In
Academic
&
Professional
Staff Association v Pretorius NO and Others
[3]
,
the Court discussed the principles for consideration and said that:
‘
[17]
The
factors which the court takes into consideration in assessing whether
or not to grant condonation are: (a) the degree of lateness
or
non-compliance with the prescribed time frame; (b) the
explanation for the lateness or the failure to comply with time
frame; (c) prospects of success or
bona
fide
defence in the main case; (d)
the importance of the case; (e) the respondent's interest in the
finality of the judgment;
(f) the convenience of the court;
and (g) avoidance of unnecessary delay in the administration of
justice…
[18] It
is trite law that these factors are not individually decisive but are
interrelated and must be weighed
against each other. In weighing
these factors for instance, a good explanation for the lateness may
assist the applicant in compensating
for weak prospects of success.
Similarly, strong prospects of success may compensate the inadequate
explanation and long delay.’
[11]
This
Court has considered amongst other factors, the reasons for the
delay, the degree of
lateness
and
the prejudice likely to be suffered by either party in granting the
leave to appeal.
[12]
In
regard to the reasons for the delay, the applicant succeeded to
persuade this Court by giving an account of the period of the
delay.
[13]
As
far as the degree of lateness is concerned, the application for leave
to appeal was four days late which the Court found to be
minimal and
further that the reasons justified the delay.
[14]
In
Foster
v Stewart Scott Inc
[4]
,
the principle was stated in the following manner:
It
is well settled that in considering applications for condonation the
court has a discretion, to be exercised judicially upon
a
consideration of all the facts. Relevant considerations may include
the degree of non-compliance with the rules, the explanation
therefor, the prospects of success on appeal, the importance of a
case, the respondent’s interest in the finality of the
judgment, the convenience of the court, and the avoidance of
unnecessary delay in the administration of justice, but the list is
not exhaustive. These factors are not individually decisive, but are
interrelated and must be weighed one against the other.
A slight
delay and good explanation for the delay may help to compensate for
prospects of success which are not strong
. Conversely, very good
prospects of success on appeal may compensate for an otherwise
perhaps inadequate explanation and long delay.
See, in general,
Erasmus Superior Court Practice at 360-366A.’ [Own emphasis]
[15]
Following
the Court in
Foster
,
where it was held that “…
[a]
slight delay and good explanation for the delay may help to
compensate for prospects of success which are not strong..
.”
this Court is of the view that the delay in
casu
is so
slight
that it can compensate the weak prospects of success.
[16]
The
issue of prejudice was also taken into account and in the Court’s
view, four days’ delay will not cause prejudice
to the third
respondent should condonation be granted.
[17]
Upon
considering the facts relating to this unopposed application for
condonation, this Court is persuaded to grant condonation,
as it is
hereby granted.
[18]
Now
that condonation is granted, the Court will turn to deal with the
application for leave to appeal.
The
test for granting leave to appeal
[19]
The
test for granting leave to appeal is directed by section 17 of the
Superior Courts Act
[5]
which
provides for the criteria to be followed when deciding on the
application for leave to appeal against the decision of courts
a
quo
which also binds this Court.
[20]
Section
17 indicates the following:
‘
(1) 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.’ [Own emphasis]
[21]
Laying
emphasis on the instructive provisions of section 17 of the Superior
Courts Act, the case of
[6]
Fusion
explains the imperatives of the section in the following terms:
‘
Since
the coming into operation of the Superior Courts Act, there have been
a number of decisions of our courts which dealt with
the requirements
that an applicant for leave to appeal in terms of ss 17(1)(a)(i) and
17(1)(a)(ii) must satisfy in order for leave
to be granted. The
applicable principles have over time crystallised and are now well
established. Section 17(1) provides, in material
part, that leave to
appeal may only be granted '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…”
It
is manifest from the text of s 17(1)(a) that an applicant seeking
leave to appeal must demonstrate that the envisaged appeal
would
either have a reasonable prospect of success, or, alternatively, that
'there is some compelling reason why an appeal should
be heard'.
Accordingly, if neither of these discrete requirements is met, there
would be no basis to grant leave.’
[22]
Section
17 raises relevant questions that this Court needs to consider and
answer. These questions were unpacked and relevantly
answered in the
unreported case of
Bayi
v Passenger Rail Agency of South Africa
[7]
as follows:
(i)
Is this court of the opinion that if the leave to appeal is granted
there would be a reasonable prospect of success?; or (ii)
is there a
compelling reason why the appeal should be heard by the Appeal Court
considering further if there are conflicting judgments
on the matter
under consideration?; and (ii) is the decision sought to be appealed
not disposing of all the issues in the case,
would the appeal lead to
a just and prompt resolution of the real issues between the parties?
Each question will be dealt with
in turn.
‘
Is
this Court of the opinion that if the leave to appeal is granted
there would be a reasonable prospect of success?
[8]
[23]
In
MEC
for Health, Eastern Cape v Mkhitha and another
[9]
the Supreme Court of Appeal (SCA), laying emphasis on the strict
application of section 17 on prospects of success, said the
following:
‘
[16]
Once
again it is necessary to say that leave to appeal, especially to this
court, must not be granted unless there truly is a reasonable
prospect of success.
Section 17(1)(a)
of the
Superior Courts Act 10
of 2013
makes it clear that
leave to
appeal may only be given where the judge concerned is of the opinion
that the appeal would have a reasonable prospect of
success
;
or there is some other compelling reason why it should be heard.
[21]
An
applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic chance
of
success on appeal. A mere possibility of success, an arguable case or
one that is not hopeless, is not enough. There must be
a sound,
rational basis to conclude that there is a reasonable prospect of
success on appeal.’ [Own emphasis]
[24]
Unpacking
the criteria of reasonable prospects of success, the SCA in
Smith
v S
[10]
said:
‘
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.
[11]
In
order to succeed, therefore, the appellant must convince this court
on proper grounds that he has prospects of success
on appeal and that
those prospects are not remote, but have a 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 on appeal.’
[25]
The
assessment of reasonable prospects of success must be taken into
consideration before granting leave to appeal. If there are
no
reasonable prospects of success it would be a futile exercise to
grant leave to appeal and unnecessarily burden the Appeal Court
with
a matter that does not show reasonable prospects of success. In
casu
,
the Court is of the opinion that the applicant’s matter does
not truly have reasonable prospects of success. Therefore,
the
application has failed on this requirement.
Is
there a
compelling
reason
why the appeal should be heard by the Appeal Court considering
further if there are conflicting judgments on the matter under
consideration?
[12]
[26]
The
Court in
Fusion
[13]
dealt with the requirement of compelling reason and said that:
‘…
It
is manifest from the text of
s 17(1)(a)
that an applicant seeking
leave to appeal must demonstrate that the envisaged appeal would
either have a reasonable prospect of
success, or,
alternatively,
that 'there is some compelling reason why an appeal should be heard'.
Accordingly, if neither of these discrete requirements is met, there
would be no basis to grant leave…’ [Own emphasis]
[27]
The
Applicant must demonstrate compelling reason(s) to persuade this
Court to grant leave to appeal. In the submissions, the Applicant
reiterated the arguments as proffered in the judgment delivered on 24
August 2023. In this regard, to grant leave to appeal on
the same
arguments proffered in the main judgement and on the postulation that
the Appeal Court may arrive at a different decision
would not be
sufficient. Further, the facts of the case do not involve conflicting
judgments as it is a clear matter that is guided
by many judgments of
various Courts, some decided by the Appeal Court, concurring that a
salary adjustment/increase is not a benefit
in terms of the Labour
Relations Act
[14]
(LRA). On
that score, this Court is not persuaded to reasonably believe that
another Court
would
reach a different conclusion other than the one reached by this
Court.
Is
the decision sought to be appealed not disposing of all the issues in
the case, would the appeal lead to a just and prompt resolution
of
the real issues between the parties?
[15]
[28]
Justice
and fairness dictate that the decision-maker must be lively to the
promotion of justice and fairness while observing the
ethos of the
LRA in relation to the prompt resolution of disputes. Justice and
fairness direct that the Court should not unnecessarily
refuse the
granting of the leave to appeal in the name of promptly resolving the
issues, likewise, the Court should not grant leave
to appeal in the
fear of opinions on not observing justice and fairness even though
there are no prospects of success on the matter.
[29]
If
the decision sought to be appealed against does not dispose of all
the issues in the case, the court should consider whether
granting
the leave to appeal would deliver justice
[16]
to the real issues.
[30]
The
Constitutional Court in
General
Council of the Bar of South Africa v Jiba and Others
[17]
further said:
‘
The
interests of justice enquiry, on the other hand, involves the
weighing up of varying factors
. These include reasonable
prospects of success which, although not determinative, carry more
weight than other factors. In a case
where, as here, the matter has
been to the Supreme Court of Appeal the presence of reasonable
prospects of success constitutes
a compelling reason for granting
leave.’ [reference omitted and own emphasis]
[31]
Only
matters with real reasonable prospects of success can pass the test
for granting leave to appeal in that, in the absence of
such
realistic and convincing reasonable prospects of success, leave to
appeal would be fruitless as there is no hope that another
court
would arrive at a different conclusion than the court
a
quo
hence in the case of
Mahlangu
v South African Transport and Allied Workers Union
[18]
it was emphatically stated that leave to appeal must not be granted
lightly and further that:
‘
[15] 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.
[16] 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.’
[32]
Leave
to appeal cannot be made because the applicant suddenly discovered
another strategy to argue the case or applying leave to
appeal based
on throwing the dice or on the unrealistic hope that another court
will come to a different conclusion. The applicant,
in this case, is
re-arguing the case which is not assisting the Court. After
considering the requirements for a test to grant leave
to appeal,
this Court found no basis to grant leave to appeal.
[33]
In
the premise, the following order is made:
Order
1.
The
applicant’s application for condonation for the late filing of
the application for leave to appeal is granted;
2.
The
applicant’s application for leave to appeal is dismissed;
3.
There
is no order as to costs.
MJ
Ralefatane
Acting
Judge of the Labour Court of South Africa
Appearances:
Decided in Chambers
[1]
The applicant seeks to review, correct and set aside the condonation
ruling issued by the second respondent on 19 February 2021,
case
reference number GPBC 1594/2020.
[2]
The applicant further seeks to review, correct and set aside the
rescission ruling issued by the second respondent on 05 June
2021,
case reference number GPBC 1594/2020.
[3]
[2007] ZALC 118
; (
2008)
29 ILJ 318 (LC) at paras 17 – 18.
[4]
(1997) 18 ILJ 367 (LAC) at 369B – E.
[5]
Act 10 of 2013.
[6]
[2021] ZASCA 10
(29 January 2021) at para 18.
[7]
JR 652/18 (13 October 2023) at paras 2 - 7
[8]
Section
17(1)(a)(ii) of the Act.
[9]
[2016] ZASCA 176
(25 November 2016) paras 16 – 17.
[10]
[2011] ZASCA 15
;
2012 (1) SACR 567
(SCA) at para 7.
[11]
S v
Mabena and another
2007
(1) SACR 482
(SCA) at para 22.
[12]
Section
17 (1) (a) (ii) of the Act.
[13]
Fusion
supra
at para
18.
[14]
Section 186(2)(a)
of the
Labour Relations Act 66 of 1995
, as
amended.
[15]
Section
17 (1) (c) of the Act
[16]
See:
General
Council of the Bar of South Africa v Jiba and others
[2019] ZACC 23; 2019 (8) BCLR 919 (CC).
[17]
Ibid at para 36.
[18]
[2023] ZALCJHB 238 (4 August 2023) at paras 15 – 16.