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[2015] ZALCJHB 156
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Drs Haagensen & Lurie Inc v Commission for Conciliation, Mediation And Arbitration and Others (JR 2969/10) [2015] ZALCJHB 156 (19 May 2015)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JR 2969/10
DATE: 19 MAY 2015
Not Reportable
In the matter between:
DRS HAAGENSEN & LURIE
INC
........................................................................................
Applicant
And
THE COMMISSION FOR CONCILIATION
MEDIATION AND
ARBITRATION
..........................................................................
First
Respondent
COMMISSIONER MOAHLOLI NYAMA (Cited
in
his capacity as Commissioner of the
Commission
for Conciliation and
Arbitration)
............................................................................
Second
Respondent
MADELEIN
CLOETE
...............................................................................................
Third
Respondent
PHALA MOTLATSI
N.O
........................................................................................
Fourth
Respondent
Delivered: 19 May 2015
Dealt with in chambers
JUDGMENT FOR LEAVE TO
APPEAL
MOLAHLEHI, J
[1] This is an application for leave to
appeal against the judgment of this Court made on 7 February 2014, in
terms of which the
applicant's review application was dismissed with
costs.
[2] The notice of leave to appeal was
filed on 28 February 2015 which in my calculation was 7 days late.
The notice was filed in
the Registrar’s office and no copy was
filed with my secretary as provided for in directive 15.1 of the
Practice Manual.
[3] The application came to the
attention of my secretary and to me during February 2015. At that
state the 10 days within which
the applicant was required to file the
submissions in terms of directive 15.2 of the Practice Manual had
also lapsed.
[4] In light of the above the applicant
was issued with a directive during March 2015 to file its submission
to substantiate the
grounds for leave to appeal. This submission was
made on 10 March 2015.
[5] The application is unopposed.
Although the applicant has not applied for condonation for the late
filing of the leave to appeal,
I have decided to condone the late
filing of the leave to appeal and consider the merits of the
application.
[6] As it would appear from the
judgment there were two arbitration awards which were initially
subject of the review. The first
arbitration award had to do with the
issue of whether the CCMA had jurisdiction in light of a settlement
agreement that had been
concluded by the parties. The Commissioner
found in that arbitration award that there was a dismissal, and
accordingly the CCMA
had jurisdiction to consider the dispute.
[7] The applicant having failed to cite
the Commissioner who ruled that the CCMA had jurisdiction was then
required to file a joinder
which the third respondent initially
opposed. After the third respondent consented to the joinder the
applicant was required to
have that finalized but failed to do so.
This meant that the Commissioner was still not joined when this
matter served before this
Court. The issue of non-joinder of the
first Commissioner was pertinently raised with Mr Levin representing
the applicant at the
beginning of the hearing. He indicated very
clearly that the applicant was no longer pursuing the review of the
ruling which found
that the CCMA had jurisdiction to entertain the
dispute.
[8] In the leave to appeal, the
applicant contends that the second Commissioner was obliged to
consider the issue of jurisdiction
despite the ruling that had
already been made regarding the same.
[9] The other point raised by the
applicant is that the arbitrator still needed to determine the
fairness of the dismissal taking
into account the fact that the
termination of the employment was by agreement between the parties.
[10] In considering whether to grant or
refuse leave to appeal, I am enjoined to determine whether there are
reasonable prospects
that another Court having regard to the same
material that served before this Curt is likely to arrive at a
different conclusion.
[11] I am not persuaded having regard
to the applicant’s submission and my judgment that there are
prospects that another
Court could arrive at a conclusion different
to the one reached by this Court.
[12] In the circumstances, I find that
the applicant has failed to make out a case for leave to appeal to
the Labour Appeal Court.
Order
[13] In the premises, the applicant’s
application for appeal to the Labour Appeal Court is dismissed with
no order as to costs.
Molahlehi, E
Judge of the Labour Court, South
Africa.