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[2015] ZALCJHB 90
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Msukaligwa Local Municipality v South African Local Government and Others (JR 2879/12) [2015] ZALCJHB 90 (12 March 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JR 2879/12
DATE: 12 MARCH 2015
Not Reportable
In the matter between
MSUKALIGWALOCAL
MUNICIPALITY
...........................................................................
Applicant
And
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
..........................................................................................
First
Respondent
NKOSINATHI
MASEKO
........................................................................................
Second
Respondent
IMATU
OBO GUSTAVE WALDERMAN
HEINZ
..................................................
Third
Respondent
Heard: In Chambers
Delivered: 12 March 2015
Summary:
Application for leave to appeal. Review
judgment - No reasonable prospects of success – Leave to Appeal
not granted
JUDGMENT: APPLICATION FOR LEAVE TO APPEAL
CHENIA AJ
Introduction
[1]
This
is an application for leave to appeal against the whole of my
judgment in which the Applicant's application to have the award
issued by the Second Respondent, acting under the auspices of the
First Respondent, under case number JR 2134/11, reviewed and
set
aside in accordance with the provisions of section 145 of the Labour
Relations Act No 66 of 1995 (as amended) was upheld with
no order as
to costs.
[2]
The
parties herein are referred to in the same manner as they were in the
main application.
Background
[3]
The
main application was heard on 9 January 2014 and upon conclusion of
proceedings, judgement was reserved. After careful consideration
of
the issues raised in the main application, the judgement was handed
down on 10 July 2014.
[4]
The
review application was granted for reasons outlined in the judgement
and no order as to costs was made.
[5]
Only
the Applicant has made submissions in support of this application for
leave to appeal. The Court deals with this application
on an
unopposed basis.
Grounds of Appeal
[6]
Paraphrased,
the Applicant seeks leave to appeal to the Labour Appeal Court on the
following grounds:
1.
That
the court failed to meet the requirements, as alleged and set out by
the Applicant, for setting aside a commissioner's findings;
2.
That
the court failed to provide and consider in its decision the true
definition, according to our law, of dishonesty in relation
to charge
5;
3.
That
the court failed to provide and consider in its decision that one of
the requirements for dismissal to be substantively fair
is that the
employer must lead evidence proving that the trust relationship has
broken down as a consequence of the misconduct;
4.
That
one of the reasons the court gave for substantive fairness of the
dismissal was based on an offence which the applicant was
not charged
with;
5.
That
I erred in stating that the reason for the Applicant's dismissal was
that the Applicant failed to obtain three formal quotations
from
three registered suppliers;
6.
That
the court failed to consider and incorporate into its judgement that
the dismissal was for misappropriation of monies. Similarly,
the
court failed to apply its mind that the use of monies did not
constitute fruitless or wasteful expenditure. Both the above
facts
are common cause facts;
7.
That
the evidence presented at arbitration proceedings could not justify a
finding by the court of substantive fairness and that
the court
failed to consider crucial evidence in the arbitration;
8.
That
the court failed to properly consider evidence relating to whether
the work required on the bulldozer constituted 'emergency
repairs'
and thus misdirected itself in finding that the Second Respondent
failed to take evidence in this regard into account.
9.
That
the Court erred in failing to take into account the fact that the
Respondent's witness testified that he was not misled and
that the
work done was legally procured.
10.
That
the court misdirected itself in not finding that the Second
Respondent had considered all the evidence.
Right of leave to appeal
[7]
As
a point of departure, all parties to a matter before this Court are
entitled to make application for, and appeal the decision
of the
Court.
[1]
In the application for leave to appeal the Applicant is required to
make out a substantial case on identifiable grounds as
to why the
decision of the Court should be set aside and indicate its
probabilities of success.
[8]
In
National Union of Metalworkers of SA &
others v Fry's Metals (Pty) Ltd
[2]
it was held that in order for an
applicant to succeed in an application for leave to appeal, in
addition to identifying the grounds
upon which the appeal will be
brought, it should be
clearly indicated
why such grounds give rise to reasonable prospects of success on
appeal.
Should
the applicant fail to substantiate that the identified grounds of
appeal indicate reasonable prospects of success in the
appeal court,
the application for leave to appeal should be refused.
(own emphasis added)
Test
for leave to appeal
[9]
In determining whether leave to appeal
should be granted, the Labour Court is required to consider whether
there is a reasonable
prospect that another court could come to a
different decision than that of the court
a
quo.
The court in
Karbochem
Sasolburg (A Division of Sentrachem Ltd) v Kriel and Others
[3]
specifically made reference to this test as
follows:
‘
I have
understood that the test in deciding whether to grant leave to appeal
is the traditional test. It requires a judge to ask
whether there is
a reasonable prospect that another court may come to a different
conclusion.
'
[10]
The
Applicant is therefore required to show that that there is a
reasonable prospect that another court could come another conclusion.
Reasonableness of the
arbitration award
[11]
I
refer to the Supreme Court of Appeal decision in
Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as amicus
curiae)
[4]
which requires that, in order to succeed, an applicant in a review
application needs to establish fundamental errors of fact or
law on
the part of the Commissioner which affect the reasonableness of his
decision.
[12]
In
Nampak Corrugated Wadeville v Khoza
[5]
the Labour Appeal Court confirmed that:
"The
determination of an appropriate sanction is a matter which is largely
within the discretion of the employer. However,
this discretion must
be exercised fairly. A court should, therefore, not lightly interfere
with the sanction imposed by the employer
unless the employer acted
unfairly in imposing the sanction.
The
question is not whether the court would have imposed the sanction
imposed by the employer, but whether in the circumstances
of the case
the sanction was reasonable.
"
(own emphasis added).
Merits for the application for leave to appeal
[13]
The
applicant raised 10 individual grounds of review. I consider the
merits of the grounds for appeal in light of the above-mentioned
authority.
[14]
When
considering the application for leave to appeal, the
Fry's
Metal's
case is of crucial importance.
It states that in the grounds for leave to appeal, it should clearly
be indicated why such grounds
of appeal give rise to reasonable
prospects of success on appeal. It is the Court's opinion that there
are very few or even no
submissions made as to how these grounds of
appeal establish reasonable prospects of success. The Applicant has
detailed certain
grounds upon which it believes are strong grounds
for appeal, but fails to make mention of how these grounds create
reasonable
prospects of success.
[15]
In
terms of the test I am required to apply fact that the Applicant has
failed to establish prospects of success, weighs heavily
against
granting the leave to appeal.
[16]
There
are also substantial defects regarding certain grounds of appeal
which will now be discussed.
[17]
In
paragraph 1, the Applicant alleges that the Court failed to comply
with the requirements for making a determination that the
commissioner's findings on the facts were unreasonable. The Applicant
also lists 5 grounds upon which such a determination can
be made and
states that is trite law that these grounds are required for such a
determination.
[18]
I
am of the opinion, with respect, that the Applicant has completely
misdirected himself as to the actual requirements for such
a
determination. It is trite law, in actual fact, that the test set out
in
Sidumo,
namely
whether or not the commissioner's decision was one that a reasonable
decision-maker would have made, is the appropriate criteria
in this
regard. It is this test that is used to determine whether such a
determination can be made and as such set aside the arbitration
award. Reference to the
Sidumo
case is contained in paragraphs 24 – 29 of my judgement.
[19]
The
Applicant provides a definition of dishonesty found in the
Nedcor
case and states that the Court erred in the judgement by not
providing that such definition is trite law. The Applicant in no way
explains how this constitutes an error on my part in the judgement. A
lack of pronouncement that a definition is trite law cannot
be a
ground of appeal. I therefore find that this ground of appeal cannot
succeed.
[20]
In
paragraph 8 the Applicant states that it is 'simply not correct to
provide that a machine must break down for repairs to constitute
an
emergency'. In no place in the judgement is any reference made that
requires a machine to 'break down' in order to constitute
an
emergency. Such a statement is an inference drawn from paragraph 42
of the judgement where it was stated that the failure to
report any
faults on the machine influenced/had a bearing on whether the there
was a real emergency or not.
[21]
Similarly,
in paragraph 4 the Applicant alleges that the Court erred in the
finding that the dismissal was substantively fair based
on
non-compliance with procedure. The Applicant submits that I erred in
this regard because this was not an offence that the Applicant
was
charged with. Again, nowhere in the judgement does it state that the
reason for the dismissal of the Applicant is due to the
non-compliance with this established procedure. As explicated in my
judgement, this was used to establish reasonable inferences
for the
charge of misconduct. The submission is therefore unfounded as this
evidence was relied upon to indicate misconduct and
not as a specific
offence that the Applicant was charged with.
[22]
In
paragraph 10 it is alleged that the Court erred in finding that the
Second Respondent failed to take into account and apply his
mind to
evidence presented regarding the failure to report any faults on the
earth moving machine. It is alleged that I erred in
not finding that
such evidence was clearly considered by the Second Respondent. This
issue was described in paragraph 42 of the
judgement. The point was
that the evidence was crucial in determining whether or not the
situation constituted a real emergency
or not. If the Second
Respondent had considered this evidence, he would not have come to
the conclusion that the work done fell
under emergency repairs. This
ground of appeal has therefore already been adequately dealt with in
the judgement and does not constitute
an error.
Conclusion
[23]
In considering all the grounds of appeal
alluded to in the application for leave to appeal, I am of the
opinion
that the Applicant has not made out
its case that another court may reasonably
arrive
at a different decision. I am also not
persuaded
that there exists any alternative basis that warrants the granting of
leave to
appeal.
[24]
Although
certain grounds in the application may bear some merit, I cannot
grant leave to appeal on this basis. This is due to the
fact that the
Applicant has not satisfied the court of its probabilities of success
in another Court. I base my judgement in this
regard on the following
excerpt from the Fry Metals case:
"Should the
applicant fail to substantiate that the identified grounds of appeal
indicate reasonable prospects of success in
the appeal court, the
application for leave to appeal should be refused".
[25]
On
this basis, I cannot grant leave to appeal in this matter.
[26]
There
is no reason to make an order for costs.
[27]
The
following order is made:
1.
The
Applicant's application for leave to appeal is dismissed.
2.
There
is no order as to costs.
CHENIA, AJ
Acting
Judge of the Labour Court
REPRESANTATIVES:
FOR
THE APPLICANT: Otto Krause INC
FOR
THE THIRD RESPONDENT: Sefalafala Attorneys
[1]
Rule 30 of the Rules For the Conduct of
Proceedings in the Labour Court.
[2]
2005 (5) SA 433
; see also
FAWU
obo Mbatha & Others v Pioneer Foods (Pty) Ltd t/a Sasko Milling
& Baking & Others
[2012] 4
BLLR 317
(SCA).
[3]
(1999) 20
ILJ
2889
(LC) at 2890B.
[4]
[2013] 11 BLLR 1074
(SCA)
[5]
(1999) 20 ILJ 578 (LAC).