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[2013] ZALCD 29
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Sithole and Others v NI-DA Transport (Pty) Ltd; Fakude and Others v NI-DA Transport (Pty) Ltd (D938/08; D795/09) [2013] ZALCD 29 (21 October 2013)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
Case
no: D938/08 & D795/09
In the matter between:
D938/08
MBEKENI
W SITHOLE
............................................................................
First
Applicant
JACOB
BERT KHANYE
.....................................................................
Second
Applicant
BHEKI
C MMOLA
...................................................................................
Third
Applicant
THULASIZWE
SIMON NGWENYA
......................................................
Fourth
Applicant
and
NI-DA
TRANSPORT (PTY) LTD
..................................................................
Respondent
D795/09
MBONISENI ANDRIES FAKUDE
............................................................
First
Applicant
EPHRAIM NDABAYAKHE CHONCO
................................................
Second
Applicant
THEMBA ZWANE
...................................................................................
Third
Applicant
And 98 others (as per the attached list)
And
NI-DA
TRANSPORT (PTY)LTD
...................................................................
Respondent
In Chambers: 21 October 2013
JUDGMENT: APPLICATION LEAVE TO APPEAL
GUSH J
In this judgment i shall refer to the applicant in the application
for leave to appeal as the applicant and the respondents in
this
application as the respondents. I make this clear for reasons that
are dealt with below regarding the applicant’s
grounds of
appeal and particularly because the applicant in the application for
leave to appeal refers to itself as “the
applicant”.
The applicant in these matters as filed an application for leave to
appeal against my judgement handed down on 24 July 2013,
in which
judgement I make the following order:
a. The dismissals by the [applicant] of the [respondents] in case
numbers D938 and 795/09 were both substantively and procedurally
unfair;
b. The [applicant] is ordered to reinstate the [respondents] in both
matters retrospectively to the date upon which they were dismissed;
c. The back pay due to the [respondents] is to be calculated in
accordance with the minimum wages as determined by the Bargaining
Council for the Road Freight Industry from time to time during the
period from the dismissal to the date on which they are to report
for
duty;
d. The [respondents] are to report for duty within 14 days of the
date of this judgment;
e. The [applicant] is ordered to pay the applicants costs in both
case numbers D938 and 795/09.
1
On 8 August 2030 the applicant’s attorneys filed a Notice of
Application for Leave to Appeal against the judgement in this
matter.
On receipt of the applicant’s application for leave to appeal
the Court’s Registrar in Durban wrote to the applicant’s
attorneys on 12 August 2013 drawing their attention to section 15 of
the 2013 Practice Manual of the Labour Court pointing out
that it
had come into operation on 2 April 2013. In addition the registrar
attached to her letter a copy of paragraph 15 of the
Practice
Manual.
Paragraph 15 of the Practice Manual provides:
15. APPLICATIONS FOR LEAVE TO APPEAL
15.1. A copy of any application for leave to appeal filed in terms of
Rule 30 must also be served on the secretary to the judge
from whom
leave to appeal is sought. If the judge’s secretary is not
available, it may be served on the secretary of any
other judge in
the seat where the matter was heard.
15.2. Within 10 days of the filing of the application for leave to
appeal, the party seeking leave must file its submissions in
terms of
Rule 30(3A) and the party opposing the leave must file its
submissions five days thereafter. An application for leave
to appeal
will be decided by the judge in Chambers on the basis of the
submissions filed in terms of Rule 30 (3A), unless the judge
directs
that the application be heard in open court.
15.3. An application for leave to appeal must be filed with the
registrar in charge of appeals.
Despite this the applicant has filed no further submissions.
Understandably in the circumstances the respondents too have made no
submissions.
The time limit within which to file submissions having elapsed I
have considered the applicants application for leave to appeal
on
the grounds are set out in the notice.
The applicant bases its averment that another court could reasonably
come to a different conclusion on the following four grounds
of
appeal:
a. The finding of the court in
the inherent probabilities of the case was unduly favourable to the
applicants
in that there were equally
probable reasons for the
applicants
failure to attend the
disciplinary enquiry and make the necessary representations in the
respondents
defence the charges raised by
the
applicant
;
(sic)
b. The court should have held
that the
respondent
bear the overall onus of proving
the fairness of the dismissals; (sic)
c. The court erred in finding
that the
applicant
led no evidence regarding the
sanction of dismissal, when evidence was led on various aggravating
factors taken into consideration
before the
applicant
decided to dismiss the
respondents
;
(sic)
d. The court further erred in
finding that the
applicant
not only failed to adduce any
evidence that established that it followed a fair procedure but also
failed to prove misconduct on
the part of the
respondents
.
(sic)
2
(my emphasis)
It would appear as if the respondent has used the terms “respondent”
and “applicants” randomly and interchangeably.
I have carefully and, insofar as I am able to understand the
applicant’s grounds of appeal even taking into account the
applicants apparent confusion, considered the respondents grounds of
appeal as set out in the Notice of Application for Leave
to Appeal.
It appears clear that they all arise from or are based on the
respondent’s specific ground of appeal that “the
Court
should have held that the respondent bear the overall onus of
proving the unfairness of the dismissals.”
What exactly the respondent intends by this ground of appeal is
unclear. The only explanation is that the respondent is seemingly
ignorant of the provisions of section 192 of the Labour Relations
Act. If so this ground is even more startling bearing in mind
that
in the pre-trial minute the applicant specifically not only agreed
that it bore the onus of proving the fairness of the
dismissals but
agreed to begin.
It was at all times common cause that the applicants had been
dismissed.
The judgement clearly deals with the onus in dismissal disputes.
3
Section 192 provides:
Onus in dismissal disputes
(1) In any proceedings
concerning any dismissal, the employee must establish the existence
of the dismissal.
(2) If the existence of the
dismissal is established, the employer must prove that the dismissal
is fair.
4
Insofar as the other three grounds of appeal are concerned, even if
they do not arise from the second ground of appeal ideal
with them
as follows:
a. First Ground: It is unclear as to what bearing the fact that the
respondents did not attend the disciplinary enquiry has on
the onus
the applicant bore to prove the dismissals were fair;
b. Third Ground: The applicant did not lead any evidence on what
factors were taken into account before dismissing the respondents;
c. Fourth Ground: The applicant did not lead evidence to establish
misconduct on the part of the individual respondents.
I am not persuaded that there is a reasonable possibility of another
court coming to a different decision in this matter and
I
accordingly make the following order:
a. The respondent application for leave to appeal in respect of Case
Numbers D938/08 & D795/09 is dismissed;
b. There is no order as to costs.
_____________
D H Gush
Judge
1
Judgment
paragraph 55
2
Notice
of Application for Leave to Appeal; pages 2 and 3
3
See
paragraph 43 of the judgment
4
Section
192
Labour Relations Act 66 of 1995