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[2015] ZALCJHB 290
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PRASA v UTATU and Others (JR3053/12) [2015] ZALCJHB 290 (9 September 2015)
IN THE LABOUR COURT OF
SOUTH AFRICA
JOHANNESBURG
Case no: JR 3053/12
DATE: 09 SEPTEMBER 2015
In the matter between:
PRASA
.......................................................................................................................................
Applicant
And
UTATU
...........................................................................................................................
First
Respondent
TOKISO
.....................................................................................................................
Second
Respondent
FRANS STASSEN
N.O
...............................................................................................
Third
Respondent
Delivered: 9 September 2015
ORDER AND REASONS IN THE APPLICATION
FOR LEAVE TO APPEAL
FOURIE AJ
Order
[1] I make the following order:
1.1 The application for leave to appeal
is dismissed with costs.
Reasons for order
[2] On 7 July 2015, in an ex tempore
judgment, I upheld an application to review and set aside an
arbitration award in which the
third respondent (the arbitrator) held
that the dismissal of the employee (represented herein by his trade
union, UTATU), was unfair.
I replaced it with an award that his
dismissal was fair.
[3] UTATU now seeks leave to appeal to
the Labour Appeal Court against the whole of the judgment and order.
[4] Having considered the grounds put
forward in the application for leave to appeal, I am not satisfied
that there are reasonable
prospects of another court reaching a
different conclusion, for the following reasons:
4.1 Counsel for UTATU, Advocate Wayne
Hutchinson, conceded during argument that the award was subject to be
reviewed on the merits.
His sole argument was that, based on the SCA
decision in Edcon v Pillemer, I should not interfere with the
sanction. I dealt with
this in some detail in the ex tempore
judgment.
4.2 The application for leave to appeal
is framed in wide and general terms, and is not limited to this
issue, and no explanation
is provided for the change in course. While
I accept that a party is not bound by concessions erroneously made by
counsel, in my
view the concession was properly made on the evidence.
The case was simply unarguable, and counsel wisely abandoned what was
beyond
salvage and focused his attention on the only real point
available to him.
4.3 The application for leave to appeal
mentions that reasons were requested for the judgment, and that UTATU
reserves the right
to amplify the grounds of appeal in due course,
once reasons have been received. This approach is misguided, for
several reasons:
A full judgment (albeit ex tempore) was handed down
in the presence of the parties on 7 July 2015. The dies for applying
for leave
to appeal commence at that point – see Rule 30(2) of
the Labour Court Rules. No further request for reasons would be
proper
– to my knowledge, none was made in any event.
4.4 In my view, the prospects of
another court reaching a different conclusion on the merits are
remote.
4.5 The application for leave to appeal
was brought out of time, with no application for condonation. Given
my view of the prospects,
this is simply another reason to refuse
leave to appeal.
[5] For these reasons, the application
for leave to appeal is refused, with costs.
GA Fourie
Acting Judge of the Labour Court of
South Africa