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[2017] ZALCJHB 49
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Majola v Member of the Executive Council for Roads and Transport: Gauteng Provincial Government and Others (J1206/15, J1529/15) [2017] ZALCJHB 49 (17 February 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: J 1206/15
J1529/15
In
the matter between:
BONGA
BALDWIN MAJOLA
Applicant
and
MEMBER
OF THE EXECUTIVE COUNCIL
FOR
ROADS AND TRANSPORT:
GAUTENG
PROVINCIAL GOVERNMENT
First
Respondent
HEAD
OF DEPARTMENT FOR ROADS AND
TRANSPORT:
GAUTENG PROVINCIAL
GOVERNMENT,
MR RONALD SWARTZ
Second Respondent
GRAHAM
MOSHOANA N.O.
Third Respondent
Heard:
15 December 2015
Delivered:
17 February 2017
Summary:
Leave to appeal – no reasonable prospect that the Labour Appeal
Court
is likely to arrive at a different conclusion – leave to appeal
dismissed.
LEAVE
TO APPEAL JUDGMENT
MOSAM,
AJ
Introduction
[1]
This
is an application for leave to appeal against the judgment of this
Honourable Court, delivered on 12 July 2016.
The
Test
[2]
The
general test for leave to appeal was clearly laid down by the Supreme
Court of Appeal (then the Appellate Division) in
Zweni
v Minister of Law and Order,
[1]
where Harms AJA (as he then was) said:
“
The
jurisdictional requirements for a civil appeal emanating from a
Provincial or Local Division sitting as a Court of first instance
are
twofold:
1)
the decision appealed against must be a ‘judgment or order’
within
the meaning of those words in the context of s 20(1) of the
[Supreme Court] Act; and
2)
the necessary leave to appeal must have been granted, either by the
Court of
first instance, or, where leave was refused by it, by this
Court. Leave is granted if there are reasonable prospects of
success.”
[3]
However,
in
Martin
& East (Pty) Ltd v National Union of Mineworkers & Others
[2]
,
the Court held that there is a stricter test that is applicable for
appeals to the Labour Appeal Court. The Court held, in particular,
that the Labour Relations Act
[3]
was designed to ensure the expeditious resolution of industrial
disputes and this means that the Labour Court needs to be cautious
when leave to appeal is granted.
[4]
[4]
There
are two sets of interest to be considered: first, the interest of the
applicant which is entitled to have his rights vindicated
if there is
a reasonable prospect that another court might come to a different
conclusion and the interests of the respondent which
may have to wait
years for an appeal to be prosecuted. Second, where the matter is
resolved on own facts, no novel point of law,
no misinterpretation of
existing law, the matter must end at Labour Court.
[5]
[5]
Accordingly,
the applicant will have to satisfy the strictest test for leave to
appeal.
Discussion
[6]
In
essence, the applicant contends that this Honourable Court erred in
not finding “
exceptional”
or “
special
”
circumstances in allowing the applicant leave to file a supplementary
affidavit. It is further contended that this Honourable
Court erred
in not finding that the applicant was entitled to protection under
the PDA.
[7]
It
is in this respect that it is submitted that there are good prospects
that the Labour Appeal Court may reach a different conclusion
than
the one reached by this Honourable Court if leave to appeal was
granted.
[6]
[8]
In
the present matter, I have not been persuaded that there is a
reasonable prospect that the Labour Appeal Court is likely to arrive
at a different conclusion if leave to appeal was to be granted in
this matter.
Order
[9]
In
the premises, the application for leave to appeal to the Labour
Appeal Court is refused.
____________________
MOSAM,
AJ
[1]
1993 (1) SA 523
A
at 531B–E.
[2]
(2014) 35 ILJ 2399
(LAC).
[3]
66 of 1995.
[4]
Martin &
East (Pty) Ltd
above n 2 at 2405-6.
[5]
See
id
at 2406.
[6]
The
applicant’s
application for leave to appeal dated 26 July 2016; The First and
Second Respondents did not oppose the appeal.