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[2017] ZALCJHB 133
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Glencore Operations South Africa (Pty) Ltd v NUM obo Mtshwene and Others (JR1907/14) [2017] ZALCJHB 133 (19 April 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no: JR1907/14
In
the matter between:
GLENCORE
OPERATIONS SOUTH AFRICA (PTY) LTD
(LION
FERROCHROME)
Applicant
and
NUM
obo SOUL
MTSHWENE
First Respondent
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
Second Respondent
SIMON
MOHUBEDU RANTHO
N.O.
Third Respondent
Decided:
In Chambers
Delivered:
19 April 2017
JUDGMENT: APPLICATION FOR LEAVE TO
APPEAL
KIRSTEIN, AJ
[1]
Judgment in the application for the review
of the arbitration award made by the third respondent was handed down
on 1 December 2016.
[2]
On 22 December 2016 the first respondent
delivered an application for leave to appeal.
[3]
On 26 January 2017 the first respondent
delivered submissions on the application for leave to appeal.
[4]
On 1 February 2017 the applicant delivered
answering submissions on the application for leave to appeal.
In the answering
submissions the applicant referred to the late
delivery of the application for leave to appeal and submissions.
It is submitted
that the application for leave to appeal was
delivered on 23 December 2016 and therefore one day out of time.
The submissions
on leave to appeal by the third respondent were
delivered on 26 January 2017 and therefore approximately 2 weeks out
of time.
[5]
Subsequently the first respondent delivered
an application for condonation. The application for condonation
is unopposed.
Having considered the application for
condonation, the late filing, if any, of the application for leave to
appeal and the late
filing of the submissions on leave to appeal is
condoned.
[6]
Both parties filed comprehensive written
submissions. The third respondent appeals against the finding
to dismiss the condonation
application of the cross appeal and appeal
against the finding that the dismissal of the third respondent was
substantively fair.
[7]
It is trite that in order to be entitled to leave to appeal, an
applicant in the application for leave to appeal must satisfy
the
court that it has reasonable prospects of success on appeal and based
on the facts and the law, another court could arrive
at a conclusion
different than the one reached by the court
a
quo
.
In
Smith
v S
[1]
the court held as follows:
“
What
the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law, that a
court
of appeal could reasonably arrive at a conclusion different to that
of the trial court. In order to succeed, therefore, the
appellant
must convince this court on proper grounds that he has prospects of
success on appeal and that those prospects are not
remote but have a
realistic chance of succeeding. More is required to be established
than that there is a mere possibility of success,
that the case is
arguable on appeal or that the case cannot be categorised as
hopeless. There must, in other words, be a sound,
rational basis for
the conclusion that there are prospects of success on appeal”.
[8]
In
Westing
House Break and Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd
[2]
the
court stated that an appeal should be allowed where the matter is of
great importance or where the matter is of public importance
or where
the court is of the view that the decision might affect other
questions.
[9]
After due consideration of the application for leave to appeal and
the opposing submissions thereto, I am persuaded that there
is a
reasonable prospect that another court could arrive at a different
conclusion than the one arrived at by this court.
Furthermore I
am also of the view that there is an important question of law which
should be decided and that requires the appeal
to be heard.
[10]
In the event th
e following order is made.
O
rder
1. Condonation for the late filing of
the leave to appeal and the submissions on leave to appeal is
granted.
2. Leave to appeal is granted.
3. Costs to be costs in the appeal.
_____________________
Kirstein AJ
Acting
Judge of the
Labour
Court of South Africa
[1]
2012 (1)
SACR 567
(SCA) at para 7.
[2]
1986 (2) SA
555
(A)