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[2016] ZALCJHB 459
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AAIM Investments (Pty) Ltd t/a Pongola Hospital and Another v Solidarity obo Steenkamp and Others (J2988/14) [2016] ZALCJHB 459 (26 February 2016)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
C
ase
no: J 2988/14
In
the matter between:
AAIM
INVESTMENTS (PTY) LTD T/A
PONGOLA
HOSPITAL
FIRST APPLICANT
DR
M PRAMCHAND
SECOND APPLICANT
and
SOLIDARITY
obo STEENKAMP & 3 OTHERS
RESPONDENT
RULING: APPLICATION
FOR LEAVE TO APPEAL
VAN
NIEKERK J
[1]
The applicants seek leave to appeal against the whole of the judgment
delivered by this court on 11 November 2015, when the
court refused
to condone the late filing of an application to rescind an order
granted in terms of s 158 (1) (c), in terms of which
certain
settlement agreements were made an order of this court..
[2]
To the extent that the applicants submit that the “Rules of
Court’ provide for a hearing of the present application
in open
court, that submission ignores the long-standing practice in this
Court, as reflected by the terms of the Practice Manual,
that
applications for leave to appeal are ordinarily decided in Chambers.
(See paragraph 15 of the Practice Manual). This matter
is not of such
an exceptional nature so as to warrant it being argued other than in
terms of the submissions filed.
[3]
The test to be applied in an application such as the present is not,
as the applicants submit, whether another court hearing
the same
matter might come to a different conclusion. 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.
[4]
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. 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, 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).
[5]
The first ground of appeal is that the court erred in dismissing the
application to condone the late filing of the application
to rescind
the orders in terms of
S 158
(1) (c) granted by default because the
court ignored the service by email that had been effected by the
applicants within the prescribed
time period and that the court erred
in rejecting the submission that the applicants had a bona fide
defence.to the respondent’s
claim. The fact that the
application was sent by email to the respondents on 14 July 2015 is
not service in terms of the Rules,
but the relevant issue in this
regard is not the mode of service in itself but the respondents’
failure to explain why service
and filing was effected only on 28
August 2015. This delay remains unexplained, other than to say that
on 28 August 2015, it was
considered prudent ‘to also again
file a copy of the rescission application personally on the
Respondent’s representatives’.
It warrants repetition
that the application was not filed ‘on or around 14 July 2015’
– the registrar’s
date stamp bears the date of 28 August
2015. It also bears mentioning that the applicants’ current
attorneys are the third
set to be instructed in this litigation. In
circumstances where the basis of the rescission application was
primarily the failure
by the applicants’ first set of attorneys
to oppose the
s 158(1)
(c) application as they were ostensibly
instructed to do, one might have expected the applicants to exercise
a degree of diligence
in respect of the handling of the application
to rescind.
[6]
Turning next to the applicants’ submissions regarding the
court’s finding that they had failed to establish prospects
of
success in the main application on account of their failure to
articulate any
prima facie
defence to the
s 158(1)
(c)
proceedings, the applicants make much of misrepresentations that were
supposedly made by the individual respondents in respect
of the
settlement agreements it now contends are null and void. A cursory
reference to the founding affidavit reveals no more than
a bald
allegation that the respondents misrepresented the number of unpaid
leave days due to them which in turn led to an incorrect
calculation
of monies due. No further detail is provided in relation, for
example, to the number of leave days that the applicants
contained
was actually due to the respondents or the basis on which any
incorrect calculation was made, nor is any indication given
as to the
differential between the figures agreed by way of the settlement and
those which the applicants now contend is owing.
A further leg of the
applicants’ defence appears to be the discovery that medical
supplies and other consumables were later
found to be unaccounted
for. However, the basis on which the applicants contend that the
respondents are liable for that loss is
simply not explained but for
a vague allegation to the effect that Theron, one of the individual
respondents, had been implicated
in an incident involving a missing
generator. Again, this averment does not extend beyond the level of
bald allegation. In any
event, this is not a basis on which to
withhold payment to any or all of the individual respondents–
should the applicants
contend that the respondents are responsible
for any losses it suffered, they are fully entitled to institute
proceedings to recover
that loss. To withhold what amounts to no more
than statutory payments due on termination of employment (as
contemplated by the
terms of the settlement agreement) amounts to an
unlawful deduction for the purposes of
s 34
of the BCEA.
[7]
I am not persuaded that another court would come to a different
conclusion.
I
make the following order:
1.
The
application for leave to appeal is dismissed.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
Chambers
26
February 2016