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[2017] ZALCJHB 176
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San Contracting Services (Pty) Ltd v Kganyago and Others (JR1309/14) [2017] ZALCJHB 176 (20 February 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no
JR 1309/14
In
the matter between
SAN
CONTRACTING SERVICES (PTY) LTD
Applicant
And
FRANCIS
MAAKE KGANYAGO
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
First
Respondent
Second respondent
AMCU
obo LS MALUNGANI
Third Respondent
Chambers
20 February 2017
RULING:
APPLICATION FOR LEAVE TO APPEAL
VAN
NIEKERK J
[1]
The applicant seeks leave to appeal against the whole of the judgment
delivered on 26 May 2016 when the court dismissed an application
to
review and set aside an arbitration award issued in favour of the
third respondent. First, I must apologise to the parties for
the
delay in the determination of this application. My associate only
became aware of this application in late January 2017. For
reasons
that are not apparent to me, the file had been placed in the filing
room and not forwarded to my Chambers as is the norm.
[2]
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.
[3]
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 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).
[4]
The five grounds on which the applicant contends that the court erred
in coming to the conclusion that it did are set out in
the
application for leave to appeal, and I do not intend to repeat them
here. It is sufficient to note that in three respects,
the grounds
are premised on what the evidence led at the arbitration hearing
established or did not establish, in other words,
on fact-specific
grounds. The conclusion drawn is that the factual finding made by the
commissioner in relation to the existence
particularly of provocation
was unreasonable. From this conclusion, the applicant contends that
the decision by the commissioner
to reinstate the third respondent
subject to a final warning rather than to have upheld his dismissal
is an unreasonable decision,
and that another court might find that
the decision is not that of a reasonable decision maker.
[5]
In my view, what the applicant submissions overlook is the difference
between an appeal and a review. The test to be applied
in a
matter such as the present is whether the commissioner’s
decision falls within a band of decisions to which reasonable
decision-makers could come on the available material. The capacity of
this court to intervene, particularly in relation to the
appropriateness of sanction, is extremely limited. This much ought to
be apparent from the judgment in the
Sidumo
case, where
virtually all of the judges concerned indicated that they themselves
may well have imposed a penalty of dismissal but
that the
commissioner’s decision to impose a lesser sanction was not so
unreasonable that it warranted interference. None
of the applicant’s
grounds for appeal persuade me that the wrong test was applied to
determine the reasonableness of the
outcome of the proceedings under
review or that the outcome was so unreasonable that no reasonable
decision maker
could
come to the decision to which the first
respondent came.
[6]
In my view, there is accordingly no merit in the present application
and leave to appeal stands to be refused.
I
make the following order:
1. The application
for leave to appeal is dismissed.
ANDRÉ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT