About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2017
>>
[2017] ZALCJHB 32
|
|
Khena v Passenger Rail Agency of South Africa (J2767/16) [2017] ZALCJHB 32 (1 February 2017)
THE
LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG
Not Reportable
Case
no: J 2767/16
NKOSINATHI
KHENA
Applicant
and
PASSENGER RAIL AGENCY OF SOUTH
AFRICA
Respondent
Decided:
In Chambers
Delivered: 1 February 2017
Summary:
Application for leave to appeal. No prospects of success on appeal.
Application dismissed.
JUDGMENT-APPLICATION
FOR LEAVE TO APPEAL
PRINSLOO
J
[1]
This
is an application for leave to appeal against certain findings and
orders of this Court handed down on 6 December 2016.
[2]
The
Applicant opposed the application.
The test for leave to appeal
[3]
It is
trite that in order to be entitled to leave to appeal, an applicant
for leave to appeal must satisfy this Court that it has
reasonable
prospects of success on appeal. In the matter of
S
v Smith
[1]
the Supreme Court
of Appeal held as follows:
‘
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 reasonable 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 succeed on appeal and that those prospects are not
remote but have 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 an appeal’
[4]
However,
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. In
Seatlholo
and Others v Chemical Energy Paper Printing Wood and Allied Workers
Union and Others
[2]
Van Niekerk J confirmed the fact that the test applicable in
applications for leave to appeal is more stringent and held as
follows:
“
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
and 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 and another
(C 536/15, 6 November 2015).
The grounds for leave to appeal
[5]
In
the application for leave to appeal it appears that the Respondent
seeks leave to appeal the findings made in paragraphs 34 –
38
and 41 – 47 of the judgment as well as the orders granted. The
Respondent stated that there are reasonable prospects that
another
court will make the following findings:
1.
On
the facts, the Respondent complied with its contractual obligations,
in particular the ambit and scope of clause 1.3 of the disciplinary
code;
2.
The
applicant repudiated the contract;
3.
The
granting of specific performance and in particular prayer 3,
improperly impedes the Respondent’s contractual right to
terminate the Applicant’s employment on one month’s
notice.
[6]
The
Respondent filed written submissions in which it stated that there
are three substantive grounds of appeal namely that this
Court erred
in the interpretation issue, there was substantial compliance with
the term and condition being the subject matter
of the interpretation
issue and specific performance was inappropriate.
[7]
I
have carefully considered the submissions made by both parties in
their heads of argument filed in support and in opposition of
the
application for leave to appeal. I do not intend repeating those
submissions in this judgment.
[8]
In
deciding this application for leave to appeal I am guided by the
dicta
of
the Supreme Court of Appeal where it held in
Dexgroup
(Pty) Ltd v Trustco Group
[3]
that
:
”
The
need to obtain leave to appeal is a valuable tool in ensuring that
scarce judicial resources are not spent on appeals that lack
merit.
It should in this case have been deployed by refusing leave to
appeal.”
[9]
The
statutory imperative of the expeditious resolution of labour disputes
also 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.
[10]
Considering
the grounds for appeal and the submissions made by the parties,
I
am not convinced that the Respondent has made out a case that another
court would come to a different conclusion than the one
made by this
Court and that it has prospects of success on appeal.
[11]
It is
unfortunate that the expeditious resolution of the disciplinary
process and related issues is delayed.
Order:
[12]
In
the premises I make the following order.
The application for
leave to appeal is dismissed with cost.
_____________________
Connie
Prinsloo
Judge
of the Labour Court
[1]
2010 (1) SACR at 576 (SCA)
[2]
(2016) 37 ILJ 1485 (LC)
[3]
Unreported judgment of the Supreme Court of Appeal (687/12)
[2013]
ZASCA 120
(20 September 2013)