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[2016] ZALCCT 35
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Jeftha v SA Metal group (Pty) Ltd (C257/2016) [2016] ZALCCT 35 (17 October 2016)
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Not Reportable
Case
no: C257/2016
In
the matter between:
DEON
ARTHUR JEFTHA
Applicant
and
SA METAL GROUP
(PTY) LTD
Respondent
Decided
in Chambers
Dated:
17 October 2016
JUDGMENT-
APPLICATION FOR LEAVE TO APPEAL
TLHOTLHALEMAJE,
J
[1]
The
applicant’s application to make certain portions of the award
issued under case number WECT17537-16 an order of court
in terms of
the provisions of section 158 (1) (c) of the Labour Relations Act was
dismissed with costs in terms of a judgment handed
down on 23 August
2016.
[2]
On
13 September 2016, the applicant launched an application for leave to
appeal against that judgment, and his written submissions
were filed
on 27 September 2016. The respondent opposed the application.
[3]
Essentially,
the applicant’s contention is that the Court erred in its
findings and therefore did not correctly exercise its
discretion to
make the severance pay award an order of court in terms of section
158 (1) (c) of the LRA.
[4]
The
respondent opposed the application on the basis that first, the
judgment was not final in effect and was therefore not appealable.
The second ground relied upon was that there were no reasonable
prospects that the Labour Appeal Court would overturn that judgment
bearing in mind that the applicant sought to appeal against the
exercise of a judicial discretion.
[5]
It
is trite that the test to be applied in applications of this nature
is whether
there
are reasonable prospects that another court might come to a different
conclusion to that of the Court a quo
[1]
.
In
S v
Smith
[2]
Plasket AJA observed that:
“
What the test
of reasonable prospects of success postulates is 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. In order to succeed, therefore, the
appellant must
convince this court on proper grounds that he has prospects of
success on appeal and that those prospects are not
remote, but have a
realistic chance of succeeding. More is required to be established
than that there is a mere possibility of
success, that the case is
arguable on appeal or that the case cannot be categorised as
hopeless. There must, in other words, be
a sound, rational basis for
the conclusion that there are prospects of success on appeal”
[6]
To
the extent that in coming to its conclusion, the court a quo had
exercised its judicial discretion,
the
decision in this regard is not appealable merely on the basis that
another court could reasonably come to a different one. The
applicable test as enunciated by the LAC in
NUMSA
v Fibre Flair cc t/a Kango Canopies
[3]
is whether or not it can be said that, in exercising its discretion,
the court a quo did so "capriciously, or upon a wrong
principle,
or in a biased manner, or for insubstantial reasons, or committed a
misdirection or irregularity, or failed to exercise
discretion, or
exercised it improperly or unfairly."
[7]
I
have had regard to the grounds upon which leave to appeal is sought,
and the basis upon which the application is opposed. Further
having
reflected on my judgment, I come to the conclusion that there is no
basis upon which the Labour Appeal Court may come to
a different
conclusion on the matter. My conclusions in this regard are based on
the following considerations;
[8]
In
the judgment, it was specifically made clear that the main
application was premature in the light of the dispute before the
MEIBC. Secondly, it was common cause that there was a review
application as launched by the respondent that was pending. It
therefore
follows that the applicant’s contention that the
current order dismissing the application to enforce the severance pay
award
was final, or that the order has the effect of setting aside
the arbitration award is misleading, as the applicant still has a
mechanism of enforcing the award once those disputes have been
determined. There is no basis for a contention that any future
application
in terms of section 158 (1) (c) can be met with a defence
of
res
judicata.
In the light of these factors, I am in agreement with the
respondent’s contention that the order is not final in effect.
Such orders as the applicant should have known or anticipated, are
not appealable.
[9]
There
is nothing in the grounds upon which leave to appeal to suggest that
in exercising my discretion and dismissing the section
158 (1) (c) of
the LRA application, I had done so capriciously, or upon a wrong
principle, or in a biased manner, or for insubstantial
reasons, or
committed a misdirection or irregularity, or failed to exercise that
discretion, or exercised it improperly or unfairly.
The applicant has
not proffered any grounds upon which it can be said that there are
exceptional circumstances necessitating interference
with my
discretion. A mere allegation that the discretion was not exercised
correctly cannot form a basis for leave to appeal.
There are thus no
reasonable
prospects based on either the facts or the law that a court of appeal
could reasonably arrive at a conclusion different
to that arrived at
by this court. There is in essence, no sound or rational basis for
that conclusion to be reached.
[10]
The
respondent sought a cost order in the event that the application for
leave to appeal was dismissed. I have had regard to considerations
of
law and fairness in awarding costs, in the same manner as I had done
when such costs were awarded in the main application. The
applicant
had also sought leave to appeal in regards to the award of costs in
the light of the dispute pertaining to notice pay
having been settled
subsequent to the hearing of the main application. To the extent that
this aspect of the dispute was settled
after the main application was
heard, that on its own cannot be a sound ground for seeking leave to
appeal. For the purposes of
this application however I am not
persuaded that there is a reason for making a further cost order.
Order:
i.
The
application for leave to appeal is dismissed.
ii.
There
is no order as to costs
__________________
Tlhotlhalemaje, J
Judge
of the Labour Court of South Africa
[1]
National
Union of Metal Workers of South Africa v Jumbo Products CC
[1996] ZASCA 87
;
1996 (4)
SA 735
(A) at 742B
[2]
2012 (1)
SACR 567
(SCA) at para [7]
[3]
(2000) 21
ILJ 1079 (LAC) 1081G – 1082A