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[2016] ZALCJHB 471
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Lehola v CCMA and Others (JR1912/2012) [2016] ZALCJHB 471 (25 January 2016)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case no.: JR 1751/14
In the matter between
CINQPLAST PLASTOP (PTY) LTD
Applicant
And
C DUNN
N.O
First Respondent
THE METAL ENGINEERING INDUSTRIES
BARGAINING
COUNCIL
Second Respondent
THE NATIONAL UNION OF
METALWORKERS OF
SOUTH AFRICA
Date of ruling: 20 May 2016 (In
Chambers)
Third Respondent
RULING:
APPLICATION FOR LEAVE TO APPEAL
VAN
NIEKERK J
[1]
This is an application for leave to appeal against the whole of the
judgment delivered by this court on 25 January 2016 in which
the
court reviewed and set aside the ruling made by the first respondent
on 8 July 2014 and substituted it with a finding that
the referral to
arbitration was dismissed for lack of jurisdiction.
[2]
The test to be applied is that referred to in
s 17
of the
Superior
Courts Act, 10 of 2013
.
Section 17(1)
provides:
Leave to appeal may only be given
where the judge or judges concerned are of the opinion that –
(a)
(i) the appeal would have a reasonable
prospect of success; or
(ii) there is some other compelling
reason why the appeal should be heard, including conflicting
judgments on the matter under consideration;
(b)
the decision sought on appeal does not fall within the ambit of
section 16
(2) (a); and
(c)
where the decision sought to be appealed does not dispose of all the
issues in the
case, the appeal would lead to a just and prompt
resolution of the real issues between the parties.
[3]
The traditional formulation of the test that is applicable in an
application such as the present requires the court to determine
whether there is a reasonable prospect that another court may come to
a different conclusion to that reached in the judgment that
is sought
to be taken on appeal. Contrary to what the applicant in the present
application submits, the use of the word ‘would’
in
s17
(1) (a) (i) is indicative of a raising of the threshold since
previously, all that was required for the applicant to demonstrate
was that there was a reasonable prospect that another court
might
come to a different conclusion (see
Daantjie
Community and others v Crocodile Valley Citrus Company (Pty) Ltd and
another
(75/2008)
[2015] ZALCC 7
(28
July 2015). Further, this is not a test to be applied lightly –
the Labour Appeal Court has recently had occasion
to observe that
this court ought to be cautious when leave to appeal is granted, the
review against the commissioner’s refusal
to grant the as
should the Labour Appeal Court when petitions are granted. The
statutory imperative of the expeditious resolution
of labour disputes
necessarily requires that appeals be limited to those matters in
which there is a reasonable prospect that the
factual matrix could
receive a different treatment or where there is some legitimate
dispute on the law (See the judgment by Davis
JA in
Martin
& East (Pty) Ltd v NUM
(2014) 35
ILJ
2399
(LAC), and also
Kruger v S
2014
(1) SACR 369
(SCA) and the ruling by Steenkamp J in
Oasys
Innovations (Pty) Ltd v Henning & another
(C 536/15, 6 November 2015)). In the former judgment, the LAC
emphasised that where each matter is resolved on its own facts, and
there is no novel point of law or no misinterpretation of the
existing law, the matter must end in this court. This approach is
consistent with the statutory purpose of expeditious dispute
resolution, and the interest of both parties (and the broader
society)
in certainty.
[4]
On the basis of the authorities set out in the court’s
judgment, the principle that it is not necessary to set aside a
certificate of outcome before entertaining the question of
jurisdiction is now clear. The entire application for leave to appeal
is based on the premise that jurisdiction is to be tested on the
perspective of individual employees, members of the third respondent.
The breach of the agreement in question was alleged to have been
committed in 2005 – that was the evidence of the third
respondent’s own witness in the proceedings before Gaylard and
the gist of the correspondence addressed to the applicant by
the
third respondent. Of significance for the purpose of the review
proceedings is the third respondent’s failure to gainsay
these
averments on account of its failure to file an answering affidavit.
The third respondent cannot in those now be heard to
say that its
individual members were unaware of the existence of any of the act on
which they sought to rely as an unfair labour
practice. There is no
substantial challenge to the court’s finding that on the third
respondent’s own version, the
dispute was referred out of time.
[5]
In my view, there is no reasonable possibility that another court
might come to a different conclusion. There is no reason why
costs
should not follow the result.
I
make the following order:
1.
The application for leave to appeal is
dismissed, with costs.
ANDRÉ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT