About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2016
>>
[2016] ZALCJHB 72
|
|
Seatlholo and Others v Chemical, Energy, Paper, Printing, Wood and Allied Workers' Union and Others (J2595/15) [2016] ZALCJHB 72; (2016) 37 ILJ 1485 (LC) (24 February 2016)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: J 2595/15
In the matter between:
SAMUEL CHIEF
SEATHLOLO
FIRST APPLICANT
THULASIZWE
SIBANDE
SECOND
APPLICANT
SCOTCH MPONENG
DIBETSO
THIRD
APPLICANT
JOHANNES DUBE
FOURTH APPLICANT
LAWRECE
NZELE
FIFTH
APPLICANT
SEBENZILE XABA
SIXTH
APPLICANT
and
CHEMICAL, ENERGY,
PAPER, PRINTING, WOOD
AND ALLIED WORKERS
UNION
FIRST RESPONDENT
SIMON
MOFOKENG
SECOND RESPONDENT
THAMSANQA
MHLONGO
THIRD RESPONDENT
RULING: APPLICATION
FOR LEAVE TO APPEAL
VAN
NIEKERK J
[1]
The applicant seeks leave to appeal against the whole of the judgment
delivered by this court on 4 January 2016 when an application
to
interdict a meeting of the first respondent’s national
executive committee and for other ancillary relief was dismissed,
with costs.
[2]
The test to be applied in an application such as the present 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 judgements 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. As the respondents observe, the use of the
word “would” in
s17(1)(a)(i)
are 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, 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).
[4]
The material facts that gave rise to the application are recorded in
the judgment, and I do not propose to repeat them here.
In so far as
the present application is concerned, there is some incongruence
between the application for leave to appeal and the
written
submissions made on the applicants’ behalf, but I understand
the present application to be premised on five grounds.
The first is
that the court erred in not finding that the respondents had
perpetrated ongoing breaches of various provisions of
the first
respondent’s constitution; secondly, that the court erred in
finding that the applicants had an adequate alternative
remedy at
their disposal; thirdly, that the court erred in finding that the
applicants were not entitled to seek the court’s
intervention
prior to the meeting in question and in anticipation of an alleged
irregularity; fourthly, that the court misdirected
itself by failing
to consider and address the relief sought by the applicants in prayer
3.1 of the notice of motion; and fifthly,
that the court failed to
consider and address the relief sought in prayer 4 of the notice of
motion.
[5]
In relation to the first ground, quite simply, the purpose of the
application that served before the court was not to determine
the
extent of any compliance with this court order dated 9 October 2015,
or the extent to which the respondents had allegedly breached
the
provisions of the first respondent’s constitution. What the
applicants sought to do was to interdict a meeting to be
held the
next day. It was not for the court to make any finding as to any
ongoing breaches of the relevant provisions of the unions’
constitution, especially since these were the subject of the order
previously granted and the 90-day period within which compliance
was
to be effected. Insofar as the availability of an alternative
remedy is concerned, the remedy proposed by the respondents
and
accepted by the court was that the applicants could attend the
meeting scheduled for 5 January 2016 and raise their concerns
at the
meeting. In other words, it was not for the court to anticipate any
alleged irregularity relating to the meeting and to
interdict it on
that basis. There was no evidence that served before the court to
indicate that the meeting ought to be interdicted
had been improperly
convened in terms of the first respondent’s constitution. Even
if the court was incorrect in coming to
that conclusion, any appeal
against that funding would be moot, since the date of 5 February 2016
has passed. Should the applicants
seek to set aside resolutions
adopted at that meeting, that of course remains a remedy available to
them.
[6]
To the extent that the applicant contends that the court erred by
failing to consider or grant the relief sought in prayers
3 and 4 of
the notice motion, it should be recalled that much of the information
sought is the subject of the order granted on
9 October 2015, when
the court fixed a period of 90 days within which the requested
information was required to be furnished. It
is not disputed that
when the application that is the subject of the present proceedings
was filed, the time period had not yet
expired.
[7]
In so far as the relief claimed in prayer 4 of the notice of motion
is concerned, the relief relating to particular documents
and the
fulfilment of constitutional obligations was clearly intended to
relate to some future meeting of the NEC, on the assumption
that the
meeting scheduled for 5 January 2016 would be interdicted. To the
extent that this paragraph contemplates prayers relevant
to
preconditions to the reconvening of an interdicted meeting, the
dismissal of the application effectively disposed of the relief
sought in this regard.
[8]
In short: there is nothing in the present application that persuades
me that any appeal would have a reasonable prospect of
success. The
present application is purely academic, given that its primary
purpose was to interdict a meeting to be held the next
day. Finally,
there is no reason why the applicants ought not to pay the costs of
this application on a basis that excludes the
use of more than one
counsel.
I
make the following order:
1.
The application for leave to appeal is dismissed,
with costs, such costs to be paid by the applicants, jointly and
severally, the
one paying the other to be absolved.
ANDRÉ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
Chambers
24
February 2016