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 108
|
|
Mokhele and Others v Paving Warehouse CC (JS564/11) [2017] ZALCJHB 108 (22 March 2017)
THE
LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG
Not
Reportable
Case
no: JS 564/11
In
the matter between:
EDGAR
THIBIRI MOKHELE and 7
OTHERS
Applicant
and
PAVING
WAREHOUSE CC
Respondent
Decided:
In chambers
Judgment:
22 March 2017
RULING
ON LEAVE TO APPEAL
EVERETT
AJ;
Introduction
[1]
The applicant, Paving Warehouse cc, seeks
leave to appeal my judgment handed down on 19 May 2016.
[2]
The
applicant seeks leave to appeal my finding that the dismissals were
unlawful and invalid and my finding in the alternative that
the
dismissals were automatically unfair. The applicant challenges my
interpretation of the words “immediately before”
in
section 197A(2)(a) of the Labour Relations Act
[1]
(LRA) as well as the correctness of my interpretation of the
consequences of sections 197A.
[3]
In its submissions the applicant contended
that the business was transferred but claimed that it was entitled to
arrange its affairs
in accordance with the provisions of section 197A
and to take advantage thereof, whereas I adopted a purposive
approach, which
I found to be to protect the employment security of
workers affected by transfers.
The
test for granting leave to appeal
[4]
The test to be applied in an application
for leave to appeal is that referred to in section 17 of the Superior
Courts Act.
Section 17(1) provides that leave to appeal “may
only be given where the judge or judges concerned are of the opinion
that
the appeal would have a reasonable prospect of success” or
there is some other compelling reason why the appeal should be
heard.
[5]
In this case, the applicant submits that
there is a conflicting judgment on the meaning of “immediately
before” and
the interpretation of the consequences of a
transfer in terms of section 197A generally.
[6]
The Labour Appeal Court has recently noted
that this Court ought to be cautious in granting leave to appeal.
This is in line with
a key purpose of the LR A which is to promote
expeditious resolution of labour disputes. Accordingly, appeals
should 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.
[7]
Applying the test of whether another judge
may have come to a different conclusion, I am of the view that this
decision hinges on
the interpretation of section 197A and that it is
important for the labour market generally that the Labour Appeal
Court clarify
the correct interpretation. It is therefore appropriate
to grant leave to appeal.
Order
[8]
In the premises, I make the following order:
1.
Leave to appeal the judgment dated 19 May 2016 is
granted.
2.
Costs to be costs in the appeal.
_________________
Winnie
Everett
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
Adv. RG Beaton SC
Instructed
by:
De Villiers & Du Plessis Attorneys
For
the Respondent
Ms Lameeze Jean-Pierre of Fasken Martineau
[1]
Act 66 of 1995.