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[2016] ZALCJHB 50
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NUMSA obo Mdluli and Others v Custom Harness Manufacturer CC (JR1802/2012) [2016] ZALCJHB 50 (15 February 2016)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR 1802/12
In the matter between:
NUMSA obo J MDLULI
AND 8 OTHERS
Applicant
and
CUSTOM HARNESS
MANUFACTURER CC
Respondent
Date: 15
February 2016
Decided
in chambers.
RULING:
APPLICATION FOR LEAVE TO APPEAL
TLHOTLHALEMAJE, J
[1]
In
terms of a judgment and order handed down on 29 May 2015, the
applicants’ claim that their dismissal constituted an
automatically
unfair dismissal within the meaning of section 187 (1)
(g) of the Labour Relations Act
[1]
(the LRA) was dismissed by this court. The applicants now seek leave
to appeal against the whole of that judgment and order. The
application is unopposed.
[2]
The
test applicable to applications for leave to appeal is well
established. The enquiry is whether or not there is a reasonable
prospect that another Court might come to a different conclusion to
that of the Court a
quo
[2]
.
[3]
The
applicants’ claim of an automatically unfair dismissal arose
out of the allegation that the business of their previous
employer
(Allprod (Pty) Ltd), was transferred as a going concern to the
respondent as contemplated in section 197 or 197A of the
LRA.
[4]
After
the applicants had commenced with and closed their case during trial,
the respondent had sought absolution from the instance,
contending
that the applicants had not
prima
facie
,
demonstrated that there was a transfer of the same business as a
going concern as contemplated in section 197 or 197A of the LRA.
[5]
In
this application, the applicants contend
inter
alia
that the court erred in finding that they (applicants) had failed to
establish that on the evidence adduced, no reasonable court
could or
might reach the conclusion that the applicants had established a
prima
facie
case that the business of All Prod (Pty) Ltd was transferred as a
going concern to the respondent. It is further their contention
that
the court erred in finding that the cause of their dismissal was not
the transfer of the business and was therefore not automatically
unfair.
[6]
The
test of reasonable prospects of success postulates a dispassionate
decision, based on the facts and the law, that a court of
appeal
could reasonably arrive at a conclusion different to that of the
trial court
[3]
.
In this case, I have had regard to the grounds upon which leave to
appeal is sought and the submissions made in that regard. I
am of the
firm view that the issues raised in the application have been dealt
with in depth in the judgment. With particular reference
to
paragraphs [22] to [28] of the judgment, I am satisfied that the
difficulties with the applicants’ case were identified,
necessitating the granting of absolution from the instance, and no
purpose would be served by burdening this judgment with the
same
issues.
[7]
Having
reflected on my judgment, and further having had regard to the facts
of the case, the evidence led on behalf of the applicants
and the
applicable legal principles, I am not convinced that the case is
arguable on appeal, or that there is a sound or rational
basis for a
conclusion to be reached that there are prospects of success on
appeal.
Order:
i.
The
application for leave to appeal is dismissed.
________________
Tlhotlhalemaje, J
Judge of the Labour Court
of South Africa
[1]
Act 66 of 1995 as
amended
[2]
See
Karbochem
Sasolburg (A Division of Sentrachem Ltd) v Kriel and Others
(1999) 20 ILJ 2889 (LC) at 2890B where it was held that;
‘
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. See North East Cape Forests v SAAPAWU and Others (1997)
18 ILJ 729 (LC);
[1997] 6 BLLR 705
(LC) at 710A-B; NEWU v LMK
Manufacturing (Pty) Ltd and Others
[1997] 7 BLLR 901
(LC) and
Landman and Van Niekerk Practice in the Labour Courts (Service 1) at
A-41.’
[3]
See
S
v Smith
2012
(1) SACR 567
(SCA) at para [7]