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[2015] ZALCJHB 350
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Bafokeng Rasimone Platinum Mine (Pty) Ltd v Commission for Conciliation, Mediation And Arbitration and Others (JR 2296/12) [2015] ZALCJHB 350 (12 October 2015)
THE
LABOUR COURT OF SOUTH AFRICA
IN
JOHANNESBURG
Case
NO: JR 2296/12
DATE:
12 OCTOBER 2015
In
the matter between:
BAFOKENG
RASIMONE PLATINUM MINE (PTY)
LTD
................................................
Applicant
And
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
..........................................................................
First
Respondent
COMMISSIONER
MASHOODA PATEL
(N.O)
...................................................
Second
Respondent
RYK
BOTHA
..............................................................................................................
Third
Respondent
JUDGMENT
ON LEAVE TO APPEAL
LAGRANGE,
J
[1]
The applicant in this matter has applied
for leave to appeal against the judgment handed down on 8 July 2015.
The Court found in
favour of the applicant and set aside the
arbitration award that was the subject matter of the review. The
matter was remitted
back to the CCMA for a hearing on the following
basis, as set out in the order:
1.1 Within 30
calendar days of receipt of this judgment, the first respondent must
set down the matter for hearing before a commissioner
other than the
second respondent to consider the matter afresh on the basis of the
record in the first arbitration hearing, including
the emails
referred to as B1, B2 and B3 on page 26 of the typed transcript of
the arbitration hearing, which were missing from
the record placed
before the Court, and after hearing the evidence of Mr A Mbuli and
any evidence the second respondent may wish
to lead in rebuttal
thereof.
1.2 The
applicant’s ‘additional affidavit’ filed on 12 July
2013 is not admitted as part of the record in the
review proceedings.
1.3 The parties
must pay their own costs in the review save that the applicant must
pay the third respondent’s costs of opposing
the admission of
the affidavit on an attorney own client scale.
[2]
Apart from the grounds which the Court
found justified reviewing and setting aside the award, the applicant
wishes to appeal against
the judgement on the basis that the Court
ought to have also accepted other grounds of review which I
considered but rejected.
I do not intend to repeat the reasons why
those grounds were found wanting. In any event, even if I had erred
in any material respect
on those subsidiary findings, a finding to
the contrary on appeal would not alter the result of the judgement,
namely that the
award was reviewed and set aside. In this regard, it
is apposite to reiterate the principle that an appeal is against the
result
and not against the reasons given by a Court for its order,
viz:
“…
an
appeal lies against the order made by a court rather than its reasons
for doing so.”
[1]
[3]
The only sense in which the Court’s
original findings could affect the order made is whether the
Court ought to have ordered a
full hearing
de novo
.
The only ground of appeal relied upon by the applicant to argue that
the Court should have made such an order relates to the Court’s
finding about the alleged bias of the arbitrator for not disclosing a
suspected, but unsubstantiated, close friendship between
the
arbitrator and the third respondent’s representative. Having
considered the reasons for rejecting a claim of bias in
my judgment,
I see no reasonable prospect another Court might reach a different
conclusion. Consequently this ground of appeal
must fail.
[4]
The applicant also wishes to appeal the
refusal of the Court to admit its ‘additional affidavit’
and the attendant attorney-own
client cost award made in favour of
the third respondent in respect of his opposition to its admission.
Once again, considering
the grounds raised, it is improbable in my
view that another Court reconsidering the admission of that document
would agree to
its admission given the complete absence of any
acceptable justification why the additional issues it wished to raise
were not
dealt with in its supplementary affidavit. Quite apart from
the fact that the cost award is a discretionary matter, the applicant
has provided no reason why the respondent should have been out of
pocket in opposing such a meretricious step.
[5]
In respect of the application to appeal
against the failure to award costs in favour of the applicant despite
its overall success
I am not persuaded that another Court might be
persuaded that the interests of justice and fairness warrant a
different order,
taking into account all the circumstances of the
matter including the fact that the final determination of the
fairness of the
third respondent’s dismissal still has to be
decided.
Order
[6]
The application for leave to appeal is
dismissed with costs.
R
LAGRANGE, J
Judge
of the Labour Court
(In
Chambers)
12
October 2015
[1]
Defy
Ltd v Commissioner, South African Revenue Service
2010 (5) SA 416
(SCA)
at
427, para [48] and see also
Edcon
v Steenkamp, And Related Matters
2015
(4) SA 247
(LAC)
at
269, para [70].