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[2017] ZALCJHB 132
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Ixolo Trading 12 (Pty) Ltd t/a Galferro Galvanisers v Metal and Engineering Industries Bargaining Council and Others (JR1065/2016) [2017] ZALCJHB 132 (13 April 2017)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
No:
JR1065/2016
In
the matter between:
IXOLO
TRADING 12 (PTY) PTD t/a GALFERRO GALVANISERS
Applicant
And
THE
METAL AND ENGINEERING INDUSTRIES BARGAINING
COUNCIL
1
st
Respondent
THE
INDEPENDENT EXEMPTIONS APPEAL BOARD
2
nd
Respondent
NUMSA
OBO MEMBERS
3
rd
Respondent
Decided:
In Chambers
Date
delivered: 13 April
2017
Summary:
Application for leave to appeal. No prospects of success on appeal.
Application
dismissed.
JUDGMENT
- APPLICATION FOR LEAVE TO APPEALNAIDOO AJ
Introduction
[1]
This is an
application for leave to appeal
(“the
application”)
against my findings and order handed down in this Court on 2 February
2017.
[2]
The
respondents have not opposed the application.
The test for leave to
appeal
[3]
For the
applicant to succeed in the application it must demonstrate that it
has reasonable prospects of success on appeal. This
requires of me to
“dispassionately” assess whether the Labour Appeal Court
(“the
LAC”)
could, on the facts and/or law, reasonably come to a different
decision. The applicant is required to show that it has a realistic
prospect of succeeding on appeal. A remote prospect, or mere
possibility, of succeeding on appeal is not sufficient. The
applicant’s
case must not be hopelessly unarguable before the
LAC. On the contrary, the applicant’s success on appeal must be
based on
prospects that are sound and rational.
[1]
[4]
The LAC has
directed that caution be exercised by a judge of this Court when
seized with an application for leave to appeal. In
this regard the
judge is required to ensure that the matters that are sent to the LAC
on appeal are limited to those in which there
is a reasonable
prospect that the facts could receive a different treatment and/or
where there is some legitimate dispute on the
law.
[2]
The
applicant’s grounds for leave to appeal
[5]
The
applicant set out two grounds for leave to appeal. The first ground
is that I had incorrectly applied the
rationality
test as
enunciated by Van Niekerk J in
Building
Industry Bargaining Council (Southern and Eastern Cape) v Commission
for Conciliation Mediation and Arbitration and Others
[3]
;
whereas the correct test that should have been applied is the
reasonableness
test as
enunciated in the
Sidumo
[4]
judgement
.
[6]
The second
ground is that I had incorrectly made the finding that the first
respondent’s decision, in refusing the exemption,
was a
rational one because, as I had found, it was not true that the
applicant could not afford to pay the monthly contributions
as it had
alleged.
Conclusion
[7]
I did not
make any adverse order against the applicant based on whether the
third respondent was served with the review application.
I accept
that the review application was served on the third respondent as
pointed out by the applicant.
[8]
I have
carefully considered the submissions made by the applicant in the
application and its
written
submissions in terms of Rule 30(3A)
in the light of the grounds of appeal set out in the application. It
is not necessary to repeat those submissions in this judgment.
T
he
applicant has not made out a case that the LAC would come to a
different conclusion than the one made by me in this Court. The
applicant does not have prospects of success on appeal.
Order:
[9]
The
application for leave to appeal is dismissed.
___________________________
Naidoo AJ
Acting Judge of the
Labour Court
[1]
Khena
v Passenger Rail Agency of South Africa
(J2767/16)
[2017] ZALCJHB 32 (1 February 2017) at [3] (“the
Khena
case”) and
S
v Smith
2010
(1) SACR at 576 (SCA)
[2]
The
Khena
case at [4];
Martin
and East (Pty) Ltd v NUM
(2014)
35
ILJ
2399 (LAC) and
Kruger
v S
2014 (1) SACR 369 (SCA)
[3]
[2011]
4 BLLR 330 (LC)
[4]
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
[2007]
12 BLLR 1097
(CC)