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[2016] ZALCJHB 463
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Statistics South Africa v General Public Service Sectoral and Others (JR119/10) [2016] ZALCJHB 463 (26 February 2016)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: JR 119/10
In the matter between:
STATISTICS SOUTH
AFRICA
APPLICANT
and
GENERAL PUBLIC SERVICE
SECTORAL
BARGAINING
COUNCIL
FIRST RESPONDENT
PM NGAKO
N.O
SECOND RESPONDENT
TN
NKUNA
THIRD RESPONDENT
NEHAWU
FOURTH 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 Halgryn AJ on 28 August 2014, the
application
having been heard on 5 June 2012.
[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.
[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 grounds for leave to appeal deal first with the court’s
finding that there had been no attack made by the applicant
in these
proceedings on the second respondent’s finding that the third
respondent’s dismissal was procedurally unfair.
The applicant
contends that this conclusion is not supported by the record and that
another court may conclude that the dismissal
of the third respondent
was not procedurally unfair. Given the conclusion to which the court
came (i.e. that the dismissal was
substantively unfair and that the
third respondent should be reinstated) and the conclusion to which I
have come in the present
application, this ground for leave to appeal
has been rendered academic.
[6]
The balance of the grounds on which leave to appeal is sought rely on
a trawling through the evidence disclosed by the record
and the
assertion in each case that findings made by the court were not
sustainable. In my view, all of these submissions ignore
the LAC’s
caution expressed in
Gold Fields Mining SA (Pty) Ltd v CCMA
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC) that an applicant in review proceedings should not
deal with an award in a piecemeal fashion to determine whether one or
another failure by an arbitrator to deal with specific evidence, or
the manner in which the arbitrator dealt with particular evidence,
constitutes a reviewable irregularity. Rather, a review court must
consider the totality of the evidence before the Commissioner
and
decide whether the decision made is one to which a reasonable
decision maker could come.
[7]
In its judgment, the court dealt with each of the conclusions reached
by the commissioner in respect of each of the charges
of misconduct
brought against the third respondent. In my view, there is no
prospect that another court would come to a different
conclusion or,
put another way, conclude that on the evidence before the
commissioner, his decision did not meet the reasonableness
threshold.
Finally, there’s no reason why cost should not follow the
result.
For
the above reasons, I make the following order:
1.
The
application for leave to appeal is dismissed, with costs.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
Chambers
26
February 2016