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 147
|
|
Glencore Operations South Africa (Pty) Ltd v NUM obo Maripane and Others (JR1906/14) [2017] ZALCJHB 147 (11 May 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR 1906/14
In
the matter between:
GLENCORE
OPERATIONS
SOUTH
AFRICA (PTY) LTD (Lion
Ferrochrome)
Applicant
and
NUM
obo SIMON MARIPANE
First Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
Second Respondent
SIMON
MOHUBEDU RANTHO N.O.
Third Respondent
Heard:
28 November 2016
Delivered:
11 May 2017
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
HARPER
AJ
Introduction
[1]
On 20
September 2016 I delivered a judgment in which I made the following
order:
“
47.1.
The Review Application is granted and hence the award of the
Arbitrator is substituted with an order that
the First Respondent is
dismissed as from 7 February 2014;
47.1.1
No
compensation is granted to the First Respondent;
47.1.2
No order is
granted in respect of the costs of the Review;
47.1.3
The
Cross-Review is dismissed;
47.1.4
There is no
order granted in respect of the costs of the Cross-Review.”
Application for leave
to appeal
[2]
The first
respondent seeks leave to appeal against the whole judgment in favour
of the applicant in relation to the dismissal of
the cross-review of
the first respondent.
[3]
Paragraph 1
of the application for leave to appeal states that the first
respondent refers to the whole judgment but then only refers
to the
cross-review. I shall assume for the purposes of this judgment that
the application for leave to appeal is intended to deal
with both the
review and the cross-review. In the absence of doing so, the
application would be inherently contradictory and in
any event the
application refers to the whole judgment.
[4]
I have
perused the application for leave to appeal and the submissions of
the first respondent and the submissions of the applicant
in response
thereto. As the first respondent, for the purposes of this
application, referred to itself as the first respondent
and Glencore
Operation South Africa (Pty) Ltd (Lion Ferrochrome) as the applicant,
in order to avoid any confusion I have used
those descriptions in
this judgment.
[5]
The
application essentially constitutes a repeat of what was dealt with
during the review hearing and does not offer further insight
in any
significant sense in relation to why the application for leave to
appeal should be granted by this Court. The judgment in
the review
proceedings deals with the relevant issues and accordingly I will not
canvas the details again.
The test for granting
leave to appeal
[6]
The test to
be applied is dealt with in section 17 of the Superior Courts Act.
[1]
Section 17(1) of the Act 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.” (Emphasis added.)
[7]
The
formulation of the test requires the Court to determine whether there
is a reasonable prospect that another Court
would
come to a different conclusion to that reached in the judgment a
quo.
[2]
The use of the word
“would” in section 17(1)(a)(i) of the Act indicates
that the test has been lifted to a higher
requirement as the word
“would” is used rather than the word “could”.
[3]
[8]
Paragraph 2
of the application for leave to appeal states that another Court
“
might
find
”
that another Court in summary would deal with the matter differently.
As indicated above, the test is not whether another
Court “
might
find
”
but whether it “
would
find
”
that there are reasonable prospects of success in another Court.
Accordingly, the test referred to in the application falls
short of
the correct standard.
Merits of application
for leave to appeal
[9]
In summary
the following issues are pertinent:
9.1
A failure
to work for a substantial period on the part of the first respondent
arising from a personal complaint should neither
be condoned nor
supported by this Court in circumstances where the employer complies
with its contractual obligation to pay his
salary and has instructed
him to return to his former position;
9.2
The
behaviour of the respondent during the last month of his employment
with the applicant was inexcusable and constituted daily
material
breaches of his conditions of employment;
9.3
The first
respondent could have addressed the issue in a constructive and hence
different manner by obtaining advice at the point
when he believed
that he had a grievance;
9.4
As the
first respondent was obliged to comply with and observe his
conditions of employment, the instruction of the applicant was
valid
and lawful;
9.5
He failed
to exercise his perceived rights by formally lodging a dispute or
instituting legal proceedings against NUM and possibly
the applicant.
[10]
For these
reasons and the reasons set out in the review judgment, the
respondent does not have good prospects of success on appeal.
Conclusion
[11]
The
applicant’s prospects of success in the application for leave
to appeal, at worst, are without merit and at best are very
poor.
[12]
For these
reasons, the application must be dismissed and in the circumstances
costs should follow the result.
Order
[13]
I therefore
make the following order:
13.1
The
application for leave to appeal against the finding of this Court in
respect of the outcome of the review and the cross-review
is
dismissed;
13.2
The
applicant is ordered to pay the costs of the first respondent.
________________
Roderick Harper
Acting Judge of the
Labour Court of South Africa
Appearances
For
the Applicant:
Mr D Masher of Edward Nathan
Sonnenbergs
150 West Street, Sandown,
Sandton, 2000
Tel. no.:
011-269-7600
Ref.: D Masher/S
Janari/0382020
For
the Respondent:
Mr ES Makinta of E.S Makinta Attorneys
2 Hiskett, cnr Troupant
Avenues,
Magaliessig, Fourways
Tel. no.:
011-465-1261
Ref.:
N/rp/14180/2056
[1]
Act 10 of 2013.
(the Act)
Seathlolo
& Others v Chemical Energy Paper Printing Wood & Allied
Workers Union & others
(2016)
37 ILJ 1485 (LC) at para 2.
[2]
Id at para 3.
[3]
Steenkamp J in
Andrew
James Shelton v The Statutory Council for the Print Newspaper and
Packaging Industries & Others
[2016] ZALCCT 12 at para 4.