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[2016] ZALCJHB 453
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Technikon Pretoria (now TUT) v Nel NO and Others (J1832/2002; J1987/2009) [2016] ZALCJHB 453 (2 March 2016)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case
no
J 1832/2002
J
1987/2009
In
the matter between
TECHNIKON PRETORIA
(NOW
TUT)
Applicant
And
EP NEL
N.O.
First
Respondent
THE COMMISSION FOR
CONCILIATION,
MEDIATION
AND ARBITRATION
Second
Respondent
Z
GORDON-FATAGODIEN
Third
Respondent
RULING:
APPLICATION FOR LEAVE TO APPEAL
VAN
NIEKERK J
[1] This
is an application for leave to appeal against the judgment of
Ralefatane AJ, delivered on 4 November 2015.
For the sake of
convenience, I shall refer to the applicant in these proceedings as
‘the employee’. In her judgment,
amongst other things,
the learned acting judge upheld an application to review and set
aside an arbitration award granted by default
17 April 2002 by
Commissioner Nowosenetz, and appears to have dismissed an application
for similar relief in respect of the rescission
ruling made by the
first respondent when on 15 April 2003, he refused to rescind the
default arbitration award.
[2] The
employee seeks leave to appeal in respect of these orders. The
employee does not seek leave to appeal against
the court’s
findings on the issue of prescription, nor against the court’s
rejection of his complaint regarding an
irregular proceeding.
[3] 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, 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).
[5] It
is of some significance that this matter dates back to 2000, and that
the application involved no novel
points of law. To the extent that
an appeal will further protract the matter, this is in itself a basis
on which the court ought
to refuse leave to appeal.
[6] In
so far as the review against the commissioner’s refusal to
grant the applicant condonation for the
late delivery of its
rescission application, the court set out the facts and undertook an
analysis before concluding that the review
application ought to be
granted. In essence, the court recognised (correctly) that the
question was not whether the commissioner’s
decision was wrong,
but rather whether it was unreasonable; that while the commissioner
had found that there was no ‘proper
excuse’ for the
delay, he had not weighed the applicant’s prospects of success
and had not recognised that the delay
was not particularly
significant. The court concluded after consideration of these issues
that the condonation ruling stood to
be granted, it being implicit in
this conclusion that the court found that the commissioner’s
refusal of condonation was
unreasonable.
[7] In
so far as the review against the commissioner’s refusal to
rescind the default award is concerned,
the court held in essence
that the commissioner had considered whether the notice of set down
had been served but that he had ignored
the other explanations for
the applicant’s non-attendance, that he ignored prior
correspondence that had been transmitted
to a fax number different to
the one to which the notice of set down for the arbitration had been
transmitted, that he failed to
consider whether the applicant had
given a reasonable explanation for the non-attendance and that he had
failed to consider that
the applicant had attended the conciliation
proceedings, which created doubt that it had wilfully neglected to
attend the arbitration
hearing. Further, the commissioner had failed
to consider the applicant’s prospects of success in relation to
the merits
of the dismissal claim, prospects that the court
considered good.
[8] In
short, the proceedings before the court involved two straightforward
applications for review: a review against
the refusal to grant
condonation for the late delivery of an application for rescission,
and a review against the refusal of the
application for rescission
itself. Ultimately, the court found that the distorting effect of the
commissioner’s failure to
consider series of materially
relevant facts and considerations rendered the ruling unreasonable
and thus reviewable. In my view,
considering the matter holistically
and bearing in mind that a right to appeal exists in relation to the
order made rather than
the reasons given for it, the employee does
not have reasonable prospect of success. For that reason, the
application for leave
to appeal stands to be dismissed. Finally,
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
Chambers
2
March 2016