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[2017] ZALCJHB 128
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South African Broadcasting Corporation (SOC) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR745/16) [2017] ZALCJHB 128 (19 April 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case
no: JR 745 / 16
In
the matter between:
SOUTH AFRICAN BROADCASTING
CORPORATION (SOC)
LTD
Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION First
Respondent
ELEANOR HAMBIDGE N.O. (AS
ARBITRATOR)
Second Respondent
SEAN BURKE AND 8 OTHERS
Third
and Further Respondents
Heard:
Considered in Chambers
Delivered:
19 April 2017
Summary:
Leave to appeal – no proper grounds made out –
application for leave to appeal dismissed
JUDGMENT
SNYMAN,
AJ
Introduction
[1]
This matter concerned an application by the
applicant to review and aside an arbitration award of the second
respondent in her capacity
as commissioner of the CCMA (the first
respondent), in terms of which award the first respondent found that
the third and further
respondents were employees of the applicant.
The underlying cause giving rise to the matter was an unfair labour
practice
dispute referred by the third and further respondents to the
CCMA.
[2]
In a written judgment handed down on 8
March 2017, I upheld the applicant’s review application,
reviewed and set aside the
award of the second respondent, and
substituted the award with a determination that the third to further
respondents were not employees
of the applicant, and consequently the
CCMA had no jurisdiction to entertain this matter.
[3]
On 27 March 2017, the third to further
respondents filed an application for leave to appeal, together with
written submissions as
contemplated by Rule 30(3A) of the Labour
Court Rules and clause 15.2 of the Practice Manual. The
application for leave to
appeal was opposed by the applicant, who
also filed its written submissions 5 April 2017. The
application for leave to appeal
is accordingly ripe for
determination.
[4]
Clause 15.2 of the Practice Manual further
provides that an application for leave to appeal will be determined
by a Judge in chambers,
unless the Judge directs otherwise. I see no
reason to direct otherwise and will therefore determine the third to
further respondents’
leave to appeal application in chambers.
The
merits of the application
[5]
In deciding whether to
grant leave to appeal to the Labour Appeal Court, the Labour Court
must determine whether there is a reasonable
prospect that another
Court may come to a different conclusion to that of the Court
a
quo
.
[1]
In
Karbochem Sasolburg
(A Division of Sentrachem Ltd) v Kriel and Others
[2]
the Court held:
‘
I
have understood that the test in deciding whether to grant leave to
appeal is the traditional test. It requires a judge to ask
whether
there is a reasonable prospect that another court may come to a
different conclusion. See
North
East Cape Forests v SAAPAWU and others
(1997)
18
ILJ
729 (LC)
;
[1997]
6 BLLR 705
(LC) at 710A-B;
NEWU
v LMK Manufacturing (Pty) Ltd and Others
[1997]
7 BLLR 901
(LC) and Landman and Van Niekerk
Practice
in the Labour Courts
(Service 1) at A-41.’
[6]
In
Seathlolo
and Others v Chemical Energy Paper Printing Wood and Allied Workers
Union and Others
[3]
the Court recently again considered the above test for leave to
appeal and held:
‘
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. … 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 …
’
[7]
The
third and further respondents contend that my findings relating to
the fact that the contracts they have signed must also be
considered,
is in error and at odds with existing Labour Appeal Court authority.
This is simply not the case. As I
have illustrated in my
judgment, which reasons I will not repeat again, the prevailing
authority is in fact consistent in saying
that the content of what
has been agreed the between parties should not just simply be
ignored. A very recent example of the Labour
Appeal Court saying this
can be found in
Enforce
Security Group v Mwelase and Others
[4]
.
Also, and considering that employment was always in dispute, and the
underlying dispute was one of an unfair labour practice,
it must
surely be trite that the third to further respondents had the onus to
prove they were in fact employees, especially in
the face of the
clear terms of the contracts they concluded. I simply can see no
reasonable prospect that another Court could come
to a different
conclusion in this respect.
[8]
The third to further respondents take issue
with the manner in which I considered the cumulative effect of the
evidence relating
to control and supervision of the third to further
respondents, by the applicant. I dealt with this evidence in some
detail in
my judgment, and in my view, the evidence speaks for
itself. Considering what is contained in the application for
leave to
appeal, it is my view that the third to further respondents
are seeking leave to appeal simply because they disagree with my
conclusions
on the facts in this regard. To disagree with my
conclusions however cannot make out a case for leave to appeal. I
remain entirely
unconvinced that there exists a reasonable prospect
that another Court may decide different where it comes to the
evidence relating
to control and supervision.
[9]
Having reviewed and set aside the award of
the second respondent, there was no need to decide the review
application under case
number JR 650 / 16, which fell to be
dismissed. There is simply no basis on which this conclusion can
substantiate an application
for leave to appeal.
[10]
The third to further respondents contend
that because I stated in paragraph 69 of my judgment that both the
parties had an arguable
case, this indicates a reasonable prospect of
a different decision by another Court. The reliance by the third to
further respondents
on this paragraph in my judgment was entirely
misplaced. I made this reference in the context of deciding the issue
of costs.
To exercise my discretion to make no order as to
costs because I believe a party had something legitimate to argue
about, does
not mean that I consider that another Court could decide
otherwise. I do not believe that this argument can sustain any
application
for leave to appeal.
[11]
Finally, the third to further respondents
believe that I did not place sufficient emphasis on the fact that
their contracts prohibited
them from working for direct competitors,
such as E-TV. However, what the third to further respondents simply
do not appreciate
it is that even a legitimate independent
contracting relationship could have a prohibition from rendering the
same service to a
direct competitor. This being said, even the
authorities relied on by the third to further respondents in support
of their argument
indicate that the proper consideration is whether
the third respondents were permitted and in a position to take on
outside work.
I dealt with this in some detail in my judgment as
well. The simple answer is that they were. There is no reasonable
prospect of
another Court deciding otherwise.
[12]
I thus conclude that the third to further respondents have
shown no reasonable prospect that another Court
may come to a different conclusion. The application for leave
to appeal falls
to be dismissed.
[13]
In line with the approach followed in my
original judgment, I shall make no order as to costs.
Order
[14]
In the premises, I make the following
order:
1.
The third to further respondents’ application for leave to
appeal is dismissed.
_____________________
S Snyman
Acting
Judge of the Labour Court
Appearances:
For the
Applicant:
Maserumule Attorneys
For the Third to Further
Respondents: Erasmus
Scheepers Attorneys
[1]
See
National
Education Health and Allied Workers Union v University of Cape Town
and Others
(2003)
24 ILJ 95 (CC)
;
Ngcobo v Tente Casters (Pty) Ltd
(2002) 23
ILJ 1442 (LC);
Volkswagen
SA (Pty) Ltd v Brand NO and Others
(2001) 22 ILJ 993 (LC);
Singh
and Others v Mondi Paper
(2000) 21 ILJ 966 (LC);
Glaxo
Welcome SA (Pty) Ltd v Mashaba and Others
(2000) 21 ILJ 1114 (LC).
[2]
(1999)
20 ILJ 2889 (LC)
at 2890D.
[3]
(2016) 37
ILJ 1485 (LC)
at
para 3.
[4]
[2017] ZALAC 9
(25 January 2017) at para 24.